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Oklahoma asks for a half-million in costs after opioid trial against Johnson & Johnson

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By John Sammon | Jan 15, 2020


NORMAN, Okla. (Legal Newsline) – The state of Oklahoma is asking the Cleveland County District Court to levy nearly a half-million dollars against pharmaceutical giant Johnson & Johnson for court costs after winning a $465 million victory over the company in August for allegedly causing the state’s opioid crisis.

During the nearly three-month trial, private attorneys hired by the state of Oklahoma called the opioid drug overdose epidemic the worst public health crisis in Oklahoma’s history.

Both sides appealed the decision of District Judge Thad Balkman. Johnson & Johnson was ordered to pay the $465 million for causing a public nuisance. The allegations included overly aggressive selling of drugs to doctors and minimizing the danger through a campaign of distortion.

Johnson & Johnson attorneys maintained the drugs were a valuable tool to combat chronic pain and that warning of potential dangers in using the products had been adequately supplied.

Plaintiff attorneys asked for $17.5 billion over a 30-year period to abate the drug problem. They contended in their appeal the $465 million figure was too low and would only provide one year of abatement.

Attorneys for Johnson & Johnson in their appeal maintained the $17.5 billion figure was wildly inflated and said the award should be reduced by $355 million to reflect pre-trial settlements made by the state with other drug-making companies. In those settlements and the J&J verdict, private lawyers, some of whom were campaign contributors to Oklahoma Attorney General Mike Hunter, stand to make more than $100 million.

The state’s application for trial expenses filed on Dec. 16 asked for $468,920 for expenses incurred during the run of the trial, including witness fees, process service fees, copying expenses, video depositions of witnesses, transcripts in preparation for trial and trial transcripts.

“The total expenses, as well as individual expense, requested by the plaintiff (Oklahoma) in this case were necessary and the costs were reasonable under the circumstances of this case,” state’s attorney Michael Burrage of the Oklahoma City-based Whitten Burrage law firm said in the filing.  

Johnson & Johnson attorneys in a Dec. 31 filing asked the court to hold the expenses request until the final verdict and appeals are decided.

“The state’s (expense) application is premature," the filing states, "because the judgment lacks finality while the parties’ appeals are pending. Any cost award on 'prevailing party' status would likewise lack finality. Awarding costs now runs the risk the parties will re-litigate this motion post-appeal. To avoid the resulting waste of time and resources, the court should grant a stay of any consideration of the state’s entitlement to costs.”

The trial was the first by a state over allegations the pharmaceutical industry caused an epidemic of opioid drug overdose deaths. 

AG Hunter sued 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. Johnson & Johnson's opioid brands are Duragesic, which dispenses opioids using a timed-release patch, and a pill called Nucynta.

It was 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 in Israel, earlier settled with Oklahoma. Purdue paid $270 million and $85 million was paid by Teva. That left Johnson & Johnson and Janssen as the final defendants in the case.

In the Purdue Pharma settlement, private attorneys took in $60 million. About $200 million of that 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.

Johnson & Johnson attorneys twice during the trial asked Balkman to throw out the case and both times it was denied. The judge decided 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 was followed by plaintiffs in other opioid lawsuits.

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Organizations in this Story

Oklahoma Attorney General's OfficeJohnson & Johnson