Cleveland County Courthouse
NORMAN, Okla. (Legal Newsline) – The State of Oklahoma and officials of Johnson & Johnson filed last-minute court briefs this week appealing to District Judge Thad Balkman to decide in their favor in a lawsuit accusing the company of causing the state’s opioid epidemic through its drug subsidiary Janssen Pharmaceuticals.
The filings are perhaps the last act in the nationally followed trial before Balkman is scheduled to decide the case on Aug. 26.
Closing arguments in the nearly two-month-long trial took place on July 15 and were streamed live courtesy of Courtroom View Network.
Attorneys for Johnson & Johnson filed a 182-page “Findings of Fact” brief on Thursday arguing that blaming the entire opioid problem on one company (J&J) was a legally unsupportable argument.
The document said evidence showed that Duragesic and Nucynta accounted for less than one percent of opioid prescriptions in Oklahoma.
“We agree opioid abuse is a significant public health problem in Oklahoma, but the facts and the law in this case warrant a judicial decision rejecting the State’s public nuisance claim,” John Sparks, attorney for Johnson & Johnson, told Legal Newsline.
“Not once did the State identify a single Oklahoma doctor who was misled by a single Janssen statement, nor did it prove that Janssen misleadingly marketed opioids or caused any harm in Oklahoma. The State’s attempt to resolve this tremendously complex social problem with an unprecedented expansion of public nuisance law is misguided and legally unsustainable.”
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 painkiller OxyContin and agreed to pay $600 million, at the time one of the largest pharmaceutical settlements in U.S. history.
State-hired attorneys in a final attempt to win a judgment requiring the company to pay $17 billion to abate the crisis filed a brief on Wednesday reiterating their allegation that J&J was the cause of the public health crisis in Oklahoma.
Since 2000, approximately 6,000 Oklahomans had died from opioid drug overdose.
“J&J abandoned all standards of responsible conduct in their blind resolve to make money from their drugs,” state attorneys wrote.
Portions of the state's abatement plan include an adult treatment services program (recovery housing for addicts) at a projected 30-year cost of $767 million, an addiction mental helpline at $96.5 million over 30 years, a medical drug disposal system at an estimated $3.3 million over 30 years, and technical assistance to provide training for support services at 22.3 million over 30 years.
Expanded family drug courts will cost an estimated $374.2 million over 30 years and a K-12 school education program aimed at six and seven-year-olds $424 million over 30 years.
A Naloxne (anti-opioid drug) distribution and education program would cost $42 million over 30 years, a program for removing dirty syringes and providing clean ones, plus related services at $693 million, transportation services to help people get to appointments for drug treatments, a pharmacy disposal program at $219 million over 30 years, and a pain prevention services program (non-drug treatments) projected at $2.4 billion over 30 years.
Other services include prenatal screening of pregnant and postpartum women at 150 birthing hospitals and obstetrics and gynecology (OB-GYN) offices, an opiate overdose review board budgeted at $3.8 million, a prescription monitoring system costing $38.8 million and a program management and monitoring/evaluation arm with a price tag of $55 million over 30 years.
State attorneys contended Johnson & Johnson used deliberate and deceptive tactics through overly aggressive sales reps who sold opioids to doctors 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 described as “educational” to promote opioids for all kinds of (non-cancer) pain.
Hunter, during closing remarks, told the court Johnson & Johnson had engaged in manipulative and devious behavior that he called “shameful” and “offensive.”
“I opened this trial by describing the death and destruction in this state,” he said. “The scourge (drug epidemic) continues. The defense (Johnson & Johnson) never disputed the crisis, but they blame everybody but themselves.”
J&J attorneys twice during the trial asked Balkman to throw out the case and both times it was denied, with the judge deciding that enough evidence had been presented by the state to justify a nuisance claim.
Approximately 2,000 lawsuits have been filed across the country seeking to hold drug companies responsible for the opioid epidemic and the outcome of the Oklahoma trial is being followed by plaintiffs in other opioid lawsuits.