Cleveland County Courthouse
NORMAN, Okla. (Legal Newsline) - Closing arguments were heard Monday in a historic trial to determine if Johnson & Johnson created an opioid epidemic in Oklahoma as state attorneys contend, or if as defense attorneys said, the state is trying to make Johnson the fall-guy for a societal drug problem it did not create.
“I opened this trial by describing the death and destruction in this state,” Oklahoma Attorney General Mike Hunter told the court. “The scourge continues. The defense (Johnson & Johnson) never disputed the crisis, but they blame everybody but themselves.”
The trial is the first by a state accusing the pharmaceutical industry of causing an epidemic of opioid drug overdose deaths and is being streamed live courtesy of Courtroom View Network.
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.
Hunter led the closing remarks, telling the court Johnson & Johnson had engaged in manipulative and devious behavior that he called “shameful” and “offensive.”
“Because I am prosecuting the case as a nuisance, I am called a radical,” Hunter said. “Sometimes businesses do bad things, but I and my colleagues should not be back-stabbed.”
Hunter said nuisance laws were on the books before Oklahoma became a state.
“We are aligned in our efforts with the Association of Attorneys General and the President’s Commission on Combatting Drug Addiction,” he said. “It’s a question of whether the taxpayers or the king pin (J&J) should pay the cost.”
Hunter said the company had sold its addictive products for profit ignoring the dangers.
“This was a deceitful campaign to minimize risk from opioids and over-supply,” he said. “Why did they do it? Greed. They are violating our laws, laws that must be enforced. It’s the state’s right and my duty to obtain justice.”
Brad Beckworth, the state-hired attorney, said Johnson & Johnson marketed opioids as a class of drugs.
“They were the number one supplier for the worst public health problem Oklahoma has ever seen,” he said. “They made the mutant poppy (Tasmanian Alkaloids) and worked hard with Purdue. It will cost billions to fix. When you have an over-supply, you get death.”
Larry Ottaway, the attorney for Johnson & Johnson, said the state had expanded its case to falsely accuse sales reps of lying to doctors. He said 50 million Americans have to live with chronic pain - one in every five adults in the country. He added that people with chronic pain (without opioid medication) are prone to depression, suicide and lack functional ability to live normally.
“This is not a problem with a simple answer,” Ottaway said. “Does chronic pain treatment include opioids? Absolutely. It helps people function. Janssen’s products, they’re innovative, they work.”
Ottaway said because a drug is less abused does not mean it cannot be abused. However he said substances such as fentanyl used in Duragesic were less abused than other opioids.
He said balancing risk versus access is a complex issue.
“It’s not easy, it’s only easy for lawyers who don’t have to deal with it (whether to prescribe),” Ottaway said.
Ottaway said a chart exhibited by the state showing sales of opioids going up at the same rate as overdose deaths did not reflect Janssen products, which remained flat.
“Supply is regulated by the government,” he said. “This is a supply chain that’s governed by the Drug Enforcement Agency (DEA) and the Food & Drug Administration (FDA).”
Ottaway said FDA labeling for products like Duragesic clearly warned doctors about the risks of addiction and abuse.
“Don’t tell me doctors weren’t aware of the risks,” he said. “The state would have you believe that we martialed an army to come to Oklahoma and fool doctors - it’s not true. Did they (state) bring you a single doctor that said he’d been lied to? This case is about opioids, the mess caused by opioids generally.”
Ottaway said the country and Oklahoma have a drug problem but that opioid use had decreased in the last few years while other drugs (methamphetomine) have gone up.
Ottaway said without the properly prescribed use of opioid medications people would suffer and die.
He exhibited a chart from the Centers for Disease Control (CDC) that stated it is the responsibility of states to control and monitor opioid use.
Ottaway said the state’s $17.5 billion abatement plan is untenable and undeveloped.
“It would give billions for services already provided,” he said.
The verdict will be announced by Cleveland County District Judge Thad Balkman on Aug. 26.