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Tuesday, July 23, 2019

Oklahoma's hired lawyers fight J&J's request to strike testimony; Witness was called a de facto member of State's legal team

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By John Sammon | Jul 11, 2019


NORMAN, Okla. (Legal Newsline) – Attorneys hired by the State of Oklahoma on July 1 filed a motion asking a judge to deny a request by lawyers for Johnson & Johnson to strike the testimony of a key state’s witness in a trial accusing J&J of creating an opioid epidemic.

“The defendants (J&J’s) current motion is baseless, a waste of the court’s time and should be denied,” attorneys for the State said in the filing.

Lawyers for Johnson & Johnson moved to have Dr. Andrew Kolodny’s testimony struck from the record last month. Cleveland County District Judge Thad Balkman has yet to announce a decision in the matter.

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

Kolodny, a psychiatrist, has played an important role in the State of Oklahoma’s case by linking narcotics marketing to opioid addiction and overdose deaths. In earlier testimony, he maintained that one in four people (25 percent) using long-term prescription opioids had developed an opioid use disorder (OUD).

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.

Kolodny has been called by attorneys for Johnson & Johnson a “de facto” member of the State’s legal team.

J&J attorneys said Oklahoma gave Kolodny wide access to some 90 million internal documents obtained through discovery and used his expert testimony to “pollute the trial record with rampant hearsay, rank speculation, and the State’s own take on the evidence.”

Legal Newsline previously reported that experts like Kolodny play an important role in the opioid litigation, since the plaintiffs – mostly states, cities and counties claiming to be seeking to recover opioid-related expenditures – appear to have settled on a strategy of “aggregate proof” under which they will present expert testimony, instead of specific examples, to show a connection between pharmaceutical industry practices and the increase in opioid abuse.

Thus, defendants like J&J have a strong incentive to attempt to prevent the testimony of expert witnesses as unqualified.

During his trial testimony, Kolodny talked about J&J’s ownership of a wholesale opioid ingredient business in Tasmania that he alleged made it the “kingpin” of the opioid industry. Kolodny, co-director of Opioid Policy Research for the Brandeis University Heller School for Social Policy and Management in Massachusetts, also accused J&J of influencing through funding pain-treatment organizations and other groups that he termed an “opioid Mafia.”

He outlined what he portrayed as deliberate and deceptive tactics by Johnson & Johnson and Janssen by using overly aggressive sales reps to sell the opioids to doctors by minimizing addiction risk, through misleading use of studies and articles, improper use of front groups and key opinion leaders to promote opioids, and the dissemination of bogus information called “educational” to promote opioids for all kinds of (non-cancer) pain.

The State’s filing said attorneys for J&J had attempted to prevent Kolodny from testifying before trial began on May 28, which the court denied, and were now making a second effort.

“The defendants were afforded ample opportunity to cross-examine Dr. Kolodny,” the state court filing read. “Frustrated at not being able to make any headway in discrediting his testimony, defendants now contend Kolodny acted as the state’s puppet and seek the extreme remedy of striking his testimony entirely.”   

State attorneys said there is no witness more qualified to speak on the issue of the opioid crisis in Oklahoma than Kolodny.

“Dr. Kolodny has devoted years of his life to researching, writing and lecturing about these issues,” the state filing noted. “His expert knowledge of this crisis, what caused it and what can abate it, could not be more pertinent to this case or helpful to this court.”

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Organizations in this Story

Janssen Pharmaceuticals, Inc. Johnson & Johnson Oklahoma Attorney General's Office

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