NORMAN, Okla. (Legal Newsline) - Immediately after Oklahoma closed its case against Johnson & Johnson, the company last week filed a motion seeking judgment in its favor, telling the judge who is overseeing a trial that has lasted five weeks that the State failed to prove J&J caused the state’s opioid crisis.
In a passionately written 124-page brief, J&J told Cleveland County Judge Thad Balkman that the State, his employer, had put him in an “untenable position,” asking the judge to order the company to pay as much as $17 billion to fund a 30-year package of social programs to abate an epidemic of opioid abuse in the state. To rule for the state, J&J said, Judge Balkman “must usurp the legislature and make government policy” on public health and educational questions “for decades to come.”
Such motions for a directed verdict are common at the close of a trial and it seems unlikely Judge Balkman will rule in J&J’s favor, given he denied the company’s pretrial motions to dismiss the case or allow it to proceed before a jury. The filing provides a roadmap of legal arguments for appeal should J&J lose, however, including claims the company is being punished for being on the wrong side of a long-running scientific and academic debate over the appropriate use of opioid painkillers and for associating with physicians and industry groups Oklahoma disagrees with.
The same themes will likely resurface as opioid manufacturers and distributors fight a wave of similar litigation in state courts around the country and the federal court in Ohio overseeing multidistrict litigation by nearly 2000 cities, counties and Indian tribes.
Oklahoma – like thousands of other municipal plaintiffs -- is relying upon an unprecedented use of public nuisance law, J&J says, under which any company that sells a product that can cause injury or death is theoretically liable for money damages regardless of who actually sold or used the product. In repeated barbs at Republican Attorney General Mike Hunter, J&J said Oklahoma’s highest legal officer filed an amicus brief with the Ninth Circuit Court of Appeals opposing such an expansive use of public nuisance law against the energy industry, Oklahoma’s largest employer.
“The State’s hastily revised theories and flagrantly unreliable evidence have saddled this court with a case that is both a legal miscarriage and a practical fiasco,” J&J said. “The State has used this trial – and a slew of illogical, legally defective theories far outside the bounds of Oklahoma precedent – not to `abate’ anything but to find a scapegoat.”
Hunter issued a response on the AG office's website.
“After over a month of testimony, we have shown why we believe that Johnson & Johnson is the Kingpin behind the opioid crisis that has caused the deaths of thousands of Oklahomans and created a generation of people addicted to opioids in our state,” Hunter said.
“The evidence is clear that they must be held accountable for the public nuisance they caused and ordered to abate it. They have created this problem and now they want to not only blame the state, but run from the problem. Perhaps most offensive, and what state Mental Health Commissioner Terri White put into perspective so well, is that Johnson & Johnson’s corporate representative, while on the stand, said the company bears zero responsibility for the death and destruction it has caused.”
While J&J makes a number of constitutional arguments based upon the First Amendment and the Due Process Clause, it also accuses Oklahoma of failing to establish the basic elements of a tort lawsuit. The State promised before trial began it would present statistical evidence to show how misleading marketing by J&J’s Janssen Pharmaceuticals unit led doctors to prescribe too many of the company’s products, J&J says, but never offered anything but expert opinions and a frequently repeated blue chart showing opioid deaths rising and falling in tandem with sales of prescription painkillers.
The state’s main expert witness was Dr. Andrew Kolodny, a onetime advocate for the use of opioids to treat chronic pain who went to work as a consultant for Oklahoma and other plaintiffs after he was threatened with bankruptcy over opioid litigation. Kolodny accused J&J of being the “kingpin” behind Oklahoma’s opioid crisis because it once owned a pair of companies, Noramco and Tasmanian Alkaloids, that supplied wholesale opiates to Purdue Pharma and other manufacturers.
That was a late-breaking development in the case after Purdue settled with the state, agreeing to pay $270 million to settle claims, including almost $60 million to the state’s outside lawyers, including lead trial attorney Brad Beckworth. AG Hunter hired Whitten Burrage, Nix Patterson and Glenn Coffee & Associates, all heavy contributors to his political campaigns, to represent the State on a contingency fee basis. They obtained another $17 million from the state’s $85 million settlement with Teva in June.
The State’s claims that it is liable for sales by its wholesale units fail under state and federal law, J&J says. Oklahoma law doesn’t allow tort claims against suppliers unless they are actively involved in the process of manufacturing products made from them, and Noramco and Tasmanian Alkaloids operated under strict federal regulation governing how much they could produce and who they could sell it to.
Even if they were somehow liable for selling raw materials, J&J said, the State failed to prove the company is a but-for cause of the opioid crisis since Purdue and other customers easily could obtain the same materials from other suppliers.
Core to J&J’s defense is the fact it never accounted for more than a tiny fraction of legal opioid sales in Oklahoma and its two main products, the fentanyl-containing Durgesic patch and Nucynta, a pill introduced in 2009, were relatively hard to abuse and unpopular with addicts. Oklahoma never presented any evidence of Janssen’s market share, the company said, while state records show it never exceeded 2% of prescriptions reimbursed by state health plans.
“After more than 20 days of State evidence and testimony before this Court, it is now plain for everyone to see this case was never about Janssen’s opioid products,” the company said.
The State also failed to establish an essential element needed to hold J&J liable for the entire $17 billion it is seeking to abate its opioid crisis, J&J said. Under Oklahoma law, so-called joint-and-several liability is available only if injuries are indivisible, such as when multiple companies leak pollution into the same waterway.
In this case, the State could easily identify Janssen’s contribution to the opioid crisis by identifying patients who overdosed on its products and doctors who succumbed to its marketing, but failed to do so. The State didn’t present a single person who became addicted to Janssen products as a witness and it didn’t name a single doctor who relied on misleading information to prescribe the company’s products.
Oklahoma also downplayed its own responsibility for opioid addiction and death, including delaying until 2015 the implementation of a mandatory prescription monitoring program to prevent patients from “doctor shopping” multiple prescribers to get excessive supplies of drugs.
The company ended with an explicit appeal to Judge Balkman to walk away from the task the State has given him.
“Authorizing and funding decades of government spending programs to address daunting social problems is the work of legislatures – not courts,” the company said. The State’s $17 billion abatement plan “resembles no judicial remedy ever issued by an American court. It is, from beginning to end, an appropriations bill, submitted to the Court rather than the floor of the Oklahoma legislature.”