The stakes are high for both sides and dozens of other states suing the pharmaceutical industry. A win for Oklahoma and a penalty in the billions of dollars — the state wants $17.5 billion over 30 years to “abate” the epidemic — would be a big blow to Johnson & Johnson. It might also establish a settlement threshold for future defendants.
A verdict in the company’s favor could signal that even with a home-court advantage, states may have trouble pinning responsibility on drugmakers for more than 400,000 overdose deaths and the costs of treatment, emergency care and law enforcement.
In May, a North Dakota judge threw out a government lawsuit against Purdue Pharma, maker of OxyContin, the company widely blamed for sparking the drug crisis. Oklahoma settled with two defendants in its two-year-old lawsuit — Purdue for $270 million and Teva Pharmaceutical Industries for $85 million — before the Johnson & Johnson trial began. The federal government has demanded part of the settlement with Purdue.
Looming in October is a huge, consolidated lawsuit in an Ohio federal court brought by more than 1,900 cities, counties, Native American tribes and other groups against the drug industry. Trials involving two Ohio counties are slated to begin then, as test cases.
Some plaintiffs are relying on the novel legal argument at the center of the Oklahoma case: that Johnson & Johnson’s conduct created a “public nuisance” that affected the health of Oklahomans, and one the company must help mitigate. Since the damage is done, that can be accomplished only by the company spending billions of dollars on treatment, education and other efforts in the future.
Johnson & Johnson might appeal a loss based on a misapplication of that law. In an unsuccessful attempt earlier this month to persuade Balkman to throw out the case, the company argued that “the state’s evidence bears no resemblance to any public nuisance theory previously recognized by any Oklahoma court.”
The company contends that the law is largely restricted to “harmful uses of property,” such as a factory that pollutes a waterway. State lawyers counter that the law is much broader than that.
On Monday, the state spent more than two hours summarizing the main points of its legal argument: Johnson & Johnson, and its subsidiary Janssen Pharmaceuticals, deceptively exaggerated the safety and effectiveness of opioid products and played down the risk to patients as it aggressively marketed its drugs to doctors. The motivation was greed, the state said.
State lawyers also described Johnson & Johnson as the “kingpin” of the state opioid crisis because for many years it owned two other companies that grew the poppies that produced the narcotics’ key ingredients, processed the materials and developed varieties of the plant that yielded more of the substance. Johnson & Johnson sold both companies in 2016.
“This company took the money. They cut and ran and they left us here holding the body bags,” state attorney Bradley Beckworth told Balkman. The state said more than 6,000 Oklahomans have died during the epidemic.
Johnson & Johnson lawyer Larry Ottaway argued that the company cannot be held responsible for selling legal products that are highly regulated by the federal Food and Drug Administration and the Drug Enforcement Administration, among others.
He said the state had not proved its allegation that company sales representatives lied to doctors to sell the drugs, and contended that without the medications, many Oklahomans would be condemned to lives of debilitating chronic pain.
“The state would have you believe we marshaled an army to come to Oklahoma to fool these doctors,” Ottaway told Balkman. But doctors, he said, “understand the risks of these medicines. They understand them all too well.”