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Tuesday, July 23, 2019

Attorneys for J&J again ask judge to toss case as unconstitutional as Oklahoma opioid trial nears end


By John Sammon | Jul 12, 2019

NORMAL, Okla. (Legal Newsline) – As lawyers for Johnson & Johnson called their last witness on Friday in a case accusing the company of causing an opioid epidemic, they filed a motion again asking an Oklahoma judge to toss the lawsuit saying it’s unconstitutional.

If Cleveland County District Court Judge Thad Balkman declines to dismiss the case as he did before, closing arguments will begin Monday in a landmark trial, the first by a state accusing the pharmaceutical industry of causing an epidemic of opioid drug overdose deaths.   

“We’re moving for judgement on the evidence,” Steve Brody the attorney for Johnson & Johnson told Balkman. “We've prepared a reasonably short brief why we believe the court should grant the motion (to dismiss). The brief that we will be filing is probably being filed right now.”

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

Brody said the state’s lawsuit violated federal rules of the First Amendment to the U.S. Constitution.

“The evidence is insufficient to prove a public nuisance, the states’s claims are barred by the First Amendment,” Brody said. “The evidence is not sufficient to show that the defendants (J&J) were the cause of the opioid crisis in Oklahoma. The state rule entitles the defendants to judgment. Imposing joint liability would violate due process and finally the state’s abatement remedy is not available.”

Brody said the state’s claims also violated the Oklahoma Constitution.

“It violates both due process and excessive fines clauses in the U.S. Constitution," he said.

Brad Beckworth the state-hired attorney asked Balkman to deny the defendant’s motion to dismiss the case.

“We had this argument a couple days ago,” Beckworth said. “Since that happened witnesses the defendants called have continued to unravel, they have been stronger for us than for them (defendants). We would ask that such a motion (to dismiss) be denied.”

Balkman said he would take the motion under consideration.

“Until I read the brief (motion), I will consider it together with all the other evidence presented,” he said.    

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 brought 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.

Earlier this month attorneys for Johnson & Johnson asked Balkman to dismiss the case through a “directed judgment,” saying there was not enough evidence presented by the state to support its case and that charges of public nuisance had gone beyond the intent of state laws.

The attorneys also moved to strike the testimony of a key witness for the state, Dr. Andrew Kolodny.

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).

J&J attorneys called Kolodny a highly biased “defacto” member of the state’s legal team who had been granted improper access to key documents in the case and had attempted to “pollute the trial record with rampant hearsay, rank speculation, and the State’s own take on the evidence.”

Kolodny, co-director of Opioid Policy Research for the Brandeis University Heller School for Social Policy and Management in Massachusetts, 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.

State attorneys on July 1 filed a motion asking Balkman to deny the move by Johnson & Johnson to strike Kolodny’s testimony. A decision had not been made by Friday.

State attorneys in their motion said this was a second attempt by lawyers for J&J to have the case thrown, the first made before trial started on May 28, without success.

J&J attorneys had argued that Oklahoma “public nuisance” laws were concerned with a misuse of property, for example a party at a residence that was loud, rowdy, noisy. They argued that using such laws for the selling of products (opioids) was an improper and unwarranted expansion of the nuisance law. 

However, Balkman ruled on July 7 the trial should continue saying that evidence presented by the state was sufficient for a nuisance claim.

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