Home / Audio / Pain Meds As Public Nuisance? Oklahoma Tests A Legal Strategy Against Opioid Maker

Pain Meds As Public Nuisance? Oklahoma Tests A Legal Strategy Against Opioid Maker

A worldwide megacorporation greatest identified for Band-Aids and child powder might need to pay billions for its alleged position within the opioid disaster. Johnson & Johnson was the only real defendant in a intently watched trial that wrapped up in Oklahoma state courtroom this week, with a choice anticipated later this summer time. The ruling within the civil case could possibly be the primary that will maintain a pharmaceutical firm accountable for one of many worst drug epidemics in American historical past.

Oklahoma Legal professional Normal Mike Hunter’s lawsuit alleges Johnson & Johnson and its subsidiary Janssen Prescribed drugs helped ignite the opioid disaster with overly aggressive advertising, resulting in 1000’s of overdose deaths over the previous decade in Oklahoma alone.

The trial passed off over seven weeks within the faculty city of Norman. As an alternative of a jury, a state choose heard the case.

Throughout closing arguments Monday, Hunter referred to as the corporate the “kingpin” of the opioid disaster.

“What is really unprecedented right here is the conduct of those defendants on embarking on a crafty, cynical and deceitful scheme to create the necessity for opioids,” Hunter mentioned.

The state urged Choose Thad Balkman, who presided over the civil trial, to search out Johnson & Johnson accountable for making a “public nuisance” and power the corporate to pay greater than $17 billion over 30 years to abate the general public well being disaster within the state.

Driving the opioid disaster dwelling has been a cornerstone of Oklahoma’s lawsuit. In closing arguments Monday, one of many state’s attorneys, Brad Beckworth, cited staggering prescribing statistics within the county the place the trial passed off.

“What we do have in Cleveland County is 135 prescription opioids for each grownup,” Beckworth mentioned. “These didn’t get right here from drug cartels. They received right here from one cartel: the pharmaceutical trade cartel. And the kingpin of all of it is Johnson & Johnson.”

Johnson & Johnson’s legal professional Larry Ottaway, rejected that concept in his closing argument, saying the corporate’s merchandise, which had included the fentanyl patch Duragesic and the opioid-based capsule Nucynta, have been minimally utilized in Oklahoma.

He scoffed at the concept that physicians within the state have been satisfied to unnecessarily prescribe opioids as a result of firm’s advertising techniques.

“The FDA label clearly set forth the danger of habit, abuse and misuse that might result in overdose and loss of life. Don’t inform me that docs weren’t conscious of the dangers,” Ottaway mentioned.

Ottaway performed video testimony from earlier within the trial, exhibiting Oklahoma docs who mentioned they weren’t misled concerning the medicine’ dangers earlier than prescribing them.

“Solely an organization that believes its innocence would are available and defend itself in opposition to a state, however we take the problem on as a result of we imagine we’re proper,” Ottaway argued.

Johnson & Johnson Fought On After Settlements

Initially, Hunter’s lawsuit included Purdue Pharma, the maker of OxyContin. In March, Purdue Pharma settled with the state for $270 million. Quickly after, Hunter dropped all however one of many civil claims, together with fraud, in opposition to the 2 remaining defendants.

Simply two days earlier than the trial started, one other defendant, Teva Prescribed drugs of Jerusalem, introduced an $85 million settlement with the state. The cash will likely be used for litigation prices and an undisclosed quantity will likely be allotted “to abate the opioid disaster in Oklahoma,” in keeping with a press launch from Hunter’s workplace.

Each corporations deny any wrongdoing.

The Authorized Legal responsibility Of ‘Public Nuisance’

Most states and greater than 1,600 native and tribal governments are suing drugmakers who manufactured varied sorts of opioid medicines, and drug distributors. They’re attempting to recoup billions of spent addressing the human prices of opioid habit.

“Everyone seems to be trying to see what’s going to occur with this case, whether or not it’s going to be tobacco yet again, or whether or not it’s going to go the best way the litigation in opposition to the gun-makers went,” says College of Georgia regulation professor Elizabeth Burch.

However the authorized technique is sophisticated. In contrast to the tobacco trade, from which states gained a landmark settlement, the makers of prescription opioids manufacture a product that serves a reliable medical goal and is prescribed by extremely educated physicians — some extent that Johnson & Johnson’s attorneys made quite a few instances throughout the trial.

Oklahoma’s authorized staff based mostly its total case on a declare of public nuisance, which refers to actions that hurt members of the general public, together with harm to public well being. Burch says every state has its personal public nuisance statute, and Oklahoma’s may be very broad.

“Johnson & Johnson, in some methods, is correct to lift the query: If we’re going to use public nuisance to us, beneath these circumstances, what are the boundaries?” Burch mentioned. “If the choose or an appellate courtroom sides with the state, they’re going to have to write down a really particular ruling on why public nuisance applies to this case.”

Burch mentioned the problem for Oklahoma has been to tie one opioid producer to the entire harms brought on by the continuing public well being disaster, which incorporates folks scuffling with habit to prescribed drugs, but additionally these harmed by unlawful avenue opioids, similar to heroin.

College of Kentucky regulation professor Richard Ausness agreed that it’s tough to pin all the issues on only one firm.

“Firms do unethical or immoral issues on a regular basis, however that doesn’t make it unlawful,” Ausness mentioned.

If the choose guidelines in opposition to Johnson & Johnson, Ausness mentioned, it might compel different drug corporations dealing with litigation to settle out of courtroom. Conversely, a victory for the drug big might embolden the trade within the different instances.

Earlier within the trial, the state’s professional witness, Dr. Andrew Kolodny, testified that Johnson & Johnson did greater than push its personal tablets — till 2016, it additionally profited by manufacturing uncooked elements for opioids after which promoting them to different corporations, together with Purdue, which makes Oxycontin.

“Purdue Pharma and the Sacklers have been stealing the highlight, however Johnson & Johnson in some methods, has been even worse,” Kolodny testified.

Kolodny mentioned that’s why the corporate downplayed to docs the dangers of opioids as a common class of medicine, figuring out that just about any opioid prescription would profit its backside line.

The state’s case additionally targeted on the position of drug gross sales representatives. Drue Diesselhorst was one in all Johnson & Johnson’s busiest drug reps in Oklahoma. Data mentioned throughout the trial confirmed she continued to name on Oklahoma docs who had been disciplined by the state for overprescribing opioids. She even continued to fulfill with docs who had sufferers who died from overdoses.

However Diesselhorst testified she didn’t know concerning the deaths, and nobody ever instructed her to cease concentrating on these high-prescribing physicians.

“My job was to be a gross sales rep. My job was not to determine the pink flags,” she mentioned on the witness stand.

The Function And Accountability Of Medical doctors

All through the trial, Johnson & Johnson’s protection staff prevented most of the broader accusations made by the state, as a substitute specializing in the query of whether or not the particular opioids manufactured by the corporate might have induced Oklahoma’s excessive charges of habit and deaths from overdose.

Johnson & Johnson’s lawyer, Larry Ottaway, argued the corporate’s opioid merchandise had a smaller market share within the state in comparison with different pharmaceutical corporations, and he pressured that the corporate made each effort when the medicine have been examined to stop abuse. He additionally identified that the sale of each the uncooked elements and prescription opioids themselves are closely regulated.

“This isn’t a free market,” he mentioned. “The provision is regulated by the federal government.”

Ottaway maintained the corporate was addressing the determined medical want of individuals affected by debilitating, power ache — utilizing medicines regulated by the Meals and Drug Administration and the Drug Enforcement Administration. Even Oklahoma purchases these medicine, to be used in state well being care companies.

Subsequent Steps

Choose Thad Balkman is anticipated to announce a verdict in August.

If the state’s declare prevails, Johnson & Johnson might, in the end, need to spend billions of in Oklahoma serving to to ease the epidemic. State attorneys are asking that the corporate pay $17.5 billion over 30 years, to assist abate the disaster within the state.

Balkman might select to award the complete quantity, or simply some portion of it, if he agrees with the state’s declare.

“You already know, in some methods, I feel it’s the correct technique to go for the $17 billion,” Burch, the regulation professor, mentioned. “[The state is saying] look, the statute doesn’t restrict it for us, so we’re going to ask for all the things we presumably can.”

Within the case of a loss, Johnson & Johnson is extensively anticipated to enchantment the decision. If Oklahoma loses, the state will enchantment, Legal professional Normal Mike Hunter mentioned Monday.

This story is a part of a partnership that features StateImpact Oklahoma, NPR and Kaiser Well being Information.

Kaiser Well being Information (KHN) is a nationwide well being coverage information service. It’s an editorially unbiased program of the Henry J. Kaiser Household Basis which isn’t affiliated with Kaiser Permanente.

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