Cleveland County Courthouse
NORMAN, Okla. (Legal Newsline) – An Oklahoma doctor appearing as a witness for Johnson & Johnson on Wednesday under questioning by state attorneys refused to use the word “epidemic” to describe the state’s opioid crisis, but conceded opioid overdose deaths had gone up in recent years.
“I won’t say there is an epidemic, but there is a problem,” Dr. John Muchmore an Oklahoma City endocrinology (diabetes) specialist and chair of the state’s Drug Utilization Review Board said.
Muchmore also said the Center for Disease Control (CDC) had promulgated the idea that doctors were under-treating pain in the 1990s.
The trial in the Cleveland County District is being streamed live courtesy of Courtroom View Network.
Oklahoma Attorney General Mike Hunter is suing Johnson & Johnson and Janssen alleging that the companies carried out a fraudulent advertising campaign to over-supply opiates in Oklahoma for profits leading to an epidemic Hunter called the worst in the state's history. J&J's opioid brands are Duragesic, which dispenses opioids by the use of a timed-release patch, and a pill called Nucynta.
Thousands of cases are still pending around the country and the Oklahoma case is being followed nationwide. It's also the first opioid trial under the "public nuisance" legal theory, attempting to hold pharmaceutical companies, distributors and pharmacies liable for the nation's addiction crisis. Critics of the nuisance claim say the state’s case is in reality a products liability case.
Two other co-defendant pharmaceutical companies, Purdue Pharma of Connecticut and Teva Pharmaceutical based in Israel, earlier settled with Oklahoma, $270 million from Purdue and $85 million from Teva. That left J&J (and Janssen) as sole defendants in the case.
In the Purdue Pharma settlement, private attorneys took in $60 million, while about $200 million went to a research project at Oklahoma State University, which is Hunter's alma mater.
Purdue officials pleaded guilty in 2007 of misleading the public about the risk of addiction from their opioid pain killer OxyContin and agreed to pay $600 million, at the time one of the largest pharmaceutical settlements in U.S. history.
State attorneys said Johnson & Johnson and Janssen should pay $17.5 billion earmarked in a proposed state abatement plan and not taxpayers because the companies caused the epidemic.
Muchmore told Larry Ottaway, the attorney for Johnson & Johnson, that the idea doctors didn’t know the addiction dangers of opioids or had been pushed or misled into prescribing them by J&J sales reps was “utter nonsense.”
“Did they convince you to prescribe more than appropriate?” Ottaway asked.
“Never,” Muchmore responded.
“Do you believe the benefits exceed the risks?”
“For those (appropriate) patients yes,” Muchmore said.
"Have you ever been encouraged to prescribe opioids that you thought were not appropriate for a patient by a representative of Janssen or Johnson & Johnson?"
"Not by them or any other (sales) rep," Muchmore said.
"You are aware these medications come with Food and Drug Administration-approved labels that indicate what the medications are for?"
"I'm very aware," Muchmore said.
Muchmore agreed people would suffer without such medications.
He described for the court the patients suffering conditions of acute pain he had helped by the use of opioid drugs. One had a carcinoid condition (slow-moving cancer tumor).
“I had him on methadone for years,” Muchmore said. “It greatly improved his quality of life.”
Another female patient had Paget’s disease, a misshapen bone causing pain.
“It hurts,” Muchmore said. “Because of the drug, she can get around.”
Reggie Whitten, the state-hired attorney, under cross examination asked Muchmore “how are you?”
There was no answer.
“That’s a question,” Whitten said.
“I said fine,” Muchmore responded.
Whitten pointed out that Muchmore’s brother Clyde is an attorney who has represented Purdue Pharma.
“We were told yesterday sales reps (J&J) testifying had been prepped by Johnson & Johnson lawyers for six days,” Whitten said. “Did you meet with attorneys from Johnson & Johnson?”
“No,” Muchmore said.
Whitten said Muchmore had refused to talk with state attorneys before his appearance.
Whitten displayed a photo taken on his cell phone that showed Muchmore sitting in the courtroom with J&J lawyers.
Muchmore said he was told where to sit.
“When you started practicing (medicine) in 1978 was there an (opioid) epidemic?” Whitten asked.
“I don’t use the term (epidemic),” Muchmore said. “There were people abusing opioids back then and now. I read about it in the papers. It’s awful, but I don’t see a difference between now and 1980.”
“Was there an epidemic in 1978?”
“It’s a misuse of language. I don’t see a difference.”
“Is there an epidemic today?”
“That language, I don’t use it.”
Muchmore said there is an extreme problem.
Whitten exhibited a chart showing both sales of opioid drugs and deaths from overdose going up, peaking in the years from 2008 to 2014.
“In 1978 the numbers (overdose) were not high,” Whitten said.
“That’s what the graph demonstrates,” Muchmore said.
“You’re not here as an expert witness?” Whitten asked.
“That’s correct,” Muchmore said.
“You’re not a board certified pain specialist?”
“The truth is, you’ve never seen (opioid) sales reps.”
Muchmore said he was rarely visited by sales reps, adding that he was aware of drug advertising and through talking to pharmacy officials about sales calls.
“We’ve gone through hundreds of (sales) call notes and you’ve never been visited, Johnson & Johnson sales reps never visited you,” Whitten said. “Could it be because you’re an endocrinologist?”
“Okay, I’m sure that’s true,” Muchmore said. “I make it difficult for reps to visit me.”
“Do you agree that doctors are not super-human, all of us can be influenced by marketing?” Whitten asked.
“True,” Muchmore said.
“Johnson & Johnson, not including salaries, spent $30 million per year (marketing drugs), would that surprise you?”
“I pay no attention to this sort of thing,” Muchmore said.
Whitten called false Muchmore’s statement that Johnson & Johnson was simply trying to sell its own brands of opioids. He mentioned the company's unbranded campaigning specifying no particular brand. Earlier testimony stated that unbranded campaigns were used to generate sales of a particular brand of drug later on.
“Did you know that unbranded marketing is trying to sell all opioids?” Whitten asked. ‘You haven’t seen their (J&J) marketing documents have you?”
An exhibited chart showed 20,933 sales calls to doctors by J&J reps in 2005, 18,264 in 2012, up from near zero in 1994.
“You think they (reps) did this for fun?” Whitten asked.
“They were promoting their products,” Muchmore said.
Whitten asked Muchmore if he had seen company documents telling sales reps to downplay the risks of proscribed opioid drugs and to enhance the benefits.
“I haven’t seen them,” Muchmore said.
Muchmore said the Centers for Disease Control (CDC), a federal government agency, in the 1996 time period promoted the idea that doctors were not paying enough attention to pain, called the “fifth vital sign.”
“They (CDC) were really pushing (pain management),” Muchmore said.
“You blamed the government,” Whitten asked.
“I did not,” Muchmore said.
Whitten countered that “big pharma” (the drug industry) had come up with the pain as the fifth vital sign idea.
Later in the day Dr. Kyle Toal a thoracic surgeon in Norman, Okla. testified. He called the opioid problem a "perfect storm," and said he also did not like to use the word epidemic.
"It wasn't marketing that did that (create the opioid crisis)," Toal said. "Doctors in 1996 were conservative and well meaning. What caused it was a desire to help a large group of people suffering from pain. We desperately wanted to help these poor people."