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Wednesday, April 8, 2020

J&J's attempt to cut off Oklahoma's opioid lawsuit rejected by judge overseeing trial

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By John Sammon | Jul 8, 2019


NORMAN, Okla. (Legal Newsline) – Attorneys for Johnson & Johnson on Monday lost a bid to dismiss a lawsuit brought by contingency-fee lawyers hired by the State of Oklahoma who accused the company of creating an opioid epidemic.

Cleveland County District Judge Thad Balkman decided the trial, which began on May 28, should continue. The nationally watched trial is expected to continue until late this month.

“When taken into consideration of the evidence presented by the State, reviewing the briefs filed and hearing the oral arguments, I’ve determined there is sufficient evidence for a nuisance claim,” Balkman said. “The motion (for directed judgement) is denied.”

The request for directed judgement by lawyers for Johnson & Johnson to throw out the case was filed last week.   

Before the decision was rendered, both sides made their case. Johnson & Johnson lawyers said the nuisance law in the state did not apply, while state-hired lawyers said Johnson & Johnson and its attorneys acted in a reprehensible manner.

The trial in the Cleveland County District Court is being streamed live courtesy of Courtroom View Network.

Oklahoma Attorney General Mike Hunter is suing Johnson & Johnson and its prescription-drug wing 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.  

Steve Brody, the attorney for Johnson & Johnson, asking to end the trial on Monday, cited existing Oklahoma public nuisance laws going back some 100 years and concerning a misuse of “property” that he said made the state’s case irrelevant. An example of a misuse of property, according to state law, would be in a manner that was lewd, rowdy and noisy, he said. 

Brody said the prescribing of prescription drugs legally approved by the Food and Drug Administration (FDA) through sales by sales reps, lobbying activities, funding pain organizations and using key opinion leaders all fell outside the intent of the Oklahoma nuisance laws.

“None of these are about an unlawful use of property,” Brody said. “Courts in the U.S. have turned back attempts to expand nuisance laws.”

North Dakota's case, with a similar complaint and similar wording to that in Oklahoma, has been rejected.

“This (North Dakota nuisance law) was a statute with identical language,” Brody said. “It did not extend to cases where there was selling of goods.”  

He said the state had walked away from its own case.

Brody said as an example, no one would deny there was an obesity epidemic in the country. He added in such a case, a litigant could go after fast food outlets for creating the obesity epidemic.

“Does this mean fast-food is responsible?” Brody asked. “Public law doesn’t hold gun manufacturers liable for gun violence.”

Brody exhibited a document stating that the state’s theory of public nuisance threatened any company with massive liability without protections.  

He said Janssen’s right to promote its products, to lobby and to associate with pain organizations are protected under the First Amendment.

Tasmanian Alkaloids, a poppy processing subsidiary of Johnson & Johnson from 1982 to 2016, produced about 40 percent of the world’s legal opiate crop. The firm based in Tasmania developed a new strain of poppy that officials called Norman, the crop used to create a substance called thebaine that was used in the production of OxyContin and other opioids.

Brody said there was no evidence Janssen intended to make money off Tasmanian Alkaloids through a company called Noramco.

“Janssen’s drugs represented a tiny fraction of opioids,” he said.

However, Brad Beckworth of Nix Patterson, said the FDA had warned the drug company about misinforming on the use of opioids for chronic pain in 1997. 

Beckworth said Brody had been less than respectful to Oklahoma Public Health Commissioner Terri L. White during her testimony referring to her as “Ms.” Beckworth said she had been referred to as a “radical.”

“This company (J&J) is perpetuating the opioid crisis while we sit here,” Beckworth said  

Beckworth said the U.S. President’s Commission on Combating Drug Addiction supported the state’s case against J&J.

“We’re on the right side of this,” Beckworth said. “We’re doing the right thing under Oklahoma law and they (J&J lawyers) said we were pivoting from the law, it’s not true.”

Beckworth denied he was saying that mere lobbying caused liability and indicated that to compare the case to obesity in the country as Brody had done was a dodge of the issue.

“I’ve never seen lawyers try to cut off witnesses (testimony) the way these lawyers (J&J) do,” he said. “We never said property was required in a nuisance case.”

Beckworth called the attempts of the J&J lawyers a public relations stunt designed to sway the public.  

He said First Amendment protections did not include going beyond drug labeling to aggressively promote drugs in an irresponsible manner.

“Market share doesn’t matter, this is not a damages case, when you cause an epidemic,” Beckworth said.

During the trial, lawyers for the state exhibited charts that showed sales calls on doctors made by opioid sales reps for Johnson & Johnson going up at the same rate with opioid overdose deaths, peaking in the years 2006 and 2014.

Beckworth called a correlation example used by J&J attorneys as “lawyer drivel.” The exhibited statement said that ice cream (eating) and crime both go up in the summer, but that does not mean that ice cream causes homicides.

Beckworth held in his hand an ice cream cone.

“It’s gross,” he said of the comparison (ice cream to crime). 

Beckworth said sales efforts included scripted propaganda directed at doctors and low-quality articles claiming that opioids were safe, combined with flawed claims and aggressive marketing plus bogus educational outreach.

He said the Oklahoma nuisance law does not have to specifically relate to the use of property.

“They (J&J) used cars, doctor’s offices and the internet,” Beckworth said. “We do not have a negligence claim, we’ve never seen anything like this (epidemic). They can market, but they can’t say the drugs are safer than they are.”

Beckworth called the efforts to sell the drugs a “sinister plan."

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Organizations in this Story

Oklahoma Attorney General's OfficeJanssen Pharmaceuticals, Inc.Nix, Patterson & RoachJohnson & Johnson