NORMAN, Okla. (Legal Newsline) – In a hearing Tuesday to clarify disagreements over a $572 million judgment against Johnson & Johnson for allegedly helping create an opioid epidemic in Oklahoma, attorneys for the state argued more money was needed to fully abate the problem, while lawyers for J&J requested joint liability credits to ease its burden.
In addition, Cleveland County District Judge Thad Balkman admitted making an approximate $100 million calculating error in the total judgment, which attorneys for J&J who have filed an appeal labeled “excessive.”
The error means the judgment amount against J&J could be cut by $100 million.
Balkman told the court during Tuesday’s session that in correcting the error, he would use a different calculator from now on.
The trial was streamed live courtesy of Courtroom View Network.
Oklahoma Attorney General Mike Hunter sued Johnson & Johnson and subsidiary 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.
The trial opened on May 27 and the verdict against J&J and Janssen was announced on Aug. 26.
The $572 million judgment was far less than attorneys for the state had asked for, $17.5 billion. That amount was the estimated cost of a proposed state-run abatement plan to reverse the opioid crisis that could take 30 years to achieve.
“You said the $572 million was all you could do at this time,” Brad Beckworth, the Nix Patterson attorney hired by Oklahoma on a contingency fee, told Balkman. "Your honor has a duty to fully abate the (opioid) crisis.”
Beckworth indicated the $572 million was a “one-year” solution. He asked Balkman to retain jurisdiction over the matter, conducting a yearly review to determine if the opioid crisis was abated and if not, to allocate further (J&J) funding to abate it.
Balkman had earlier ruled that the state had not presented sufficient evidence to demonstrate the amount of time and costs to abate the crisis beyond one year.
Beckworth said Balkman could oversee the abatement process. He warned that to let the problem go unresolved would be tragic.
“This nuisance (opioid crisis) is a menace to Oklahoma and one year is not enough,” Beckworth said. “We cannot stop short. If we do not abate it, more Oklahomans will die.”
Steve Brody, the attorney for Johnson & Johnson with the law firm of O’Melveny in Washington, D.C., argued the state did not present sufficient evidence to abate the crisis beyond one year and that such a move would violate separation of powers principles under law.
“There is no basis for what the state has asked you to do today,” Brody said. “There is not sufficient evidence to support a multi-year abatement policy.”
A requirement for additional years and additional money from Johnson & Johnson to provide abatement was characterized by Brody as going around the Oklahoma State Legislature.
“To do it all over again, there is no support for that in Oklahoma,” he said.
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. The company is now going through the bankruptcy process in an attempt to survive the thousands of opioid cases it faces.
Attorneys for J&J during Tuesday’s hearing asked Balkman for roughly $355 million in joint liability credits to be awarded based on the earlier settlements between Oklahoma, Purdue and Teva, further lowering the amount J&J would have to pay. Balkman was told the court did not apportion liability.
“It (judgment) must include a credit settlement amount that Teva and Purdue paid,” an attorney for the company stated.
Beckworth castigated the credit request as improperly changing the nature of the trial.
“What they (J&J) are asking you to do cannot be done,” he said. “You can’t come in now and put evidence into the record. You didn’t find these entities (Purdue) liable.”
Beckworth reminded Balkman that he had found the state’s $17.5 billion abatement plan to be “reasonable.”
“The law requires you to abate the nuisance,” Beckworth said.
Balkman said he would take arguments under advisement.
Thousands of cases are still pending around the country, with a bellwether trial in consolidated litigation in federal court in Ohio set to begin next week. Oklahoma's case was 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 theory say the state’s case is in reality a product liability case.