Johnson & Johnson, one of the world’s largest health-care conglomerates, nurtures a family-friendly image as it sells Band-Aids and baby shampoo, soaps and skin creams.
But, by connecting it to an epidemic that has ravaged the country for two decades, Oklahoma’s attorney general plans to expose another side of the company when the first major state trial of the opioid era begins later this month.
In a trial that will be televised live, state lawyers will argue that, until 2016, two of the company’s subsidiaries grew, improved and provided the narcotic ingredients for much of the U.S. prescription opioid supply, failing to intervene as the drugs’ damage grew.
The state also contends that Johnson & Johnson targeted children in its opioid marketing — an alleged effort to provide so-called replacement customers — something the company vehemently denies.
“Johnson & Johnson helped create the worst public health crisis in United States history,” said Bradley Beckworth, a private attorney representing the state in a lawsuit that seeks to hold U.S. companies accountable for results of the epidemic in Oklahoma. “They grew the demand. They spread the lies and they fed it with their own product. . . . We’ll show that at trial.”
Purdue Pharma, maker of OxyContin and a central figure in the opioid crisis, settled out of court with Oklahoma on March 26, removing the state’s prime target in the lawsuit. Since then, state Attorney General Mike Hunter (R) has refocused on the two other companies he sued in 2017: the deep-pocketed Johnson & Johnson and the smaller Teva Pharmaceutical, an Israeli-owned company that primarily sells generic drugs.
Instead of highlighting Purdue’s alleged deceptive marketing and widespread pill distribution, state lawyers mainly will work to persuade a judge that Johnson & Johnson has been a behind-the-scenes kingpin in the crisis.
But John Sparks, Johnson & Johnson’s Oklahoma counsel in the case, said the state cannot show that the company had any connection to opioid overdose deaths in Oklahoma, which reached nearly 400 in 2017, or other harms the state is claiming.
“The plaintiffs have a real problem with causation,” he said. “At some level, I feel that the plaintiffs aren’t even trying to establish any causal link between our product and the harm.”
Teva contends the state could have even more trouble linking it to Oklahoma’s drug problems. Its Actiq and Fentora products — fentanyl-based lozenges for cancer patients — accounted for just 245 prescriptions reimbursed by the state health-care authority during an entire decade, court papers show. And Teva does not promote its generic opioids, the company says.
“We didn’t have any role in the pharmaceutical crisis in Oklahoma,” a company spokesman said. “They have to prove that our clients engaged in an unlawful act, which they have characterized as false marketing.”
The focus of Johnson & Johnson’s role in opioid development is through two subsidiaries that provide the raw materials for medications. Tasmanian Alkaloids, an Australian company, is the largest producer of thebaine, a narcotic substance derived from poppies. Noramco refines thebaine and other narcotics from poppies into the active ingredient in oxycodone and other opioids for use in drug manufacturing.
Johnson & Johnson owned Tasmanian Alkaloids from 1982 to 2016, and the company worked to improve the concentration and proportion of thebaine in its Austrailian-grown poppies, allowing it to harvest more thebaine from fewer plants. It developed a variety called Norman in 1998 and another known as Ted in 2009.
Tasmanian Alkaloids and Noramco, which Johnson & Johnson owned from 1979 to 2016, provide a direct link to powerful painkilling tablets sold to consumers during much of the opioid crisis, state lawyers allege.
Johnson & Johnson also offers Duragesic, a fentanyl pain patch worn on the skin, and Ultram, a powerful narcotic, through its Janssen Pharmaceuticals subsidiary. For years, it produced Nucynta, a long-acting opioid, before selling the rights in 2015. Pharmaceuticals are the largest part of the company’s business.
Oklahoma maintains that Teva has a long-standing relationship with Purdue to distribute a generic version of OxyContin, a powerful and popular time-release opioid painkiller.
The question is whether those claims will persuade Judge Thad H. Balkman that Johnson & Johnson and Teva should pay the billions of dollars Oklahoma is seeking to clean up the fallout from the drug epidemic. Under state law, any culpability could put either company on the hook for the entire verdict.
Soon after Purdue settled with the state for $270 million, Hunter dropped several charges against the other two companies. Under state court procedures, the last remaining allegation will be heard by a judge, not a jury. Balkman will decide the size of the verdict if he rules in the state’s favor.
The possibility that Purdue could have declared bankruptcy before trial was one of the motivating factors for the settlement. But with $81.6 billion in annual revenue, Johnson & Johnson is very unlikely to adopt a similar tactic. The company also is fending off news reports that it knew its baby powder contained asbestos, and it has been ordered to pay $4.7 billion to 22 women who claimed its products gave them ovarian cancer.
Unless there is another settlement or Balkman throws out the case before the May 28 trial date, arguments will center on Oklahoma’s novel use of its “public nuisance” law. Some of the more than 1,500 other jurisdictions around the country that have filed lawsuits against drug companies have made the same claim, alleging that the marketing, sales and distribution of opioids hurt people.
Public nuisances in Oklahoma typically have been places where activities negatively affect others — a neighborhood crack house or a factory that pollutes a waterway, said Andrew M. Coats, a professor at the University of Oklahoma College of Law.
“I think they’re cutting new ground. I’ve never seen one that works this way,” Coats said. “But that doesn’t mean it won’t.” (Coats’s son, former U.S. Attorney Sanford C. Coats, represents Purdue in the lawsuit.)
Andrew Coats said Oklahoma is mounting a classic product liability case under the public nuisance law, which specifically cites the impact on the health of state residents. The state is trying to show that, like tobacco or asbestos, the products — opioid painkillers — were more dangerous than the companies told users, he said.
“It has a good deal of merit to it, because our statute on public nuisance is pretty broad,” he said.
Johnson & Johnson denies liability, noting that millions of people use narcotics without becoming addicted and that painkillers and their ingredients are regulated by the Food and Drug Administration and other agencies.
“The production of raw materials and active pharmaceutical ingredients used to manufacture Schedule II medications in the U.S. is strictly controlled, limited and monitored by the DEA, FDA, and other regulators,” a Johnson & Johnson spokesman said in a written statement, referring to narcotics. “The DEA sets quotas based on the agency’s assessment of the need for medicines containing these substances, and our businesses complied with these laws and regulations.”
But Oklahoma contends the companies took part in minimizing the dangers of opioids, resulting in widespread overuse, deaths and huge costs for health-care providers and law enforcement. It estimates that abating the damage in Oklahoma will cost more than $8.7 billion.
Oklahoma also alleges that the companies worked together, through front groups and speakers, to increase the size of the market for painkillers.
In pretrial depositions, “their witnesses have admitted the truth, that there is a public health crisis that affects the ability to live and the health of a very large number of people in the state of Oklahoma,” Beckworth said.
The state claims that Johnson & Johnson even targeted young children in its opioid marketing efforts. One state court filing contends that, “in perhaps one of the most reprehensible documents produced by defendants, this shows the depths to which J & J would go to earn a profit on their products — target potential ‘replacement customers’ at an early age to get them using (and addicted to) opioids.” The document cited is under seal.
“The recruitment of children . . . is the same kind of thing the tobacco industry did,” Beckworth said. “It’s the same kind of thing that other drugs companies do. Just marketing opioids to cancer patients and surgery patients was not enough. They wanted to expand the customer base.”
One passage in the state’s filing touts the company’s alleged relationship with Purdue, including a five-year partnership and “excellent communications.”
Another page contains a complex company chart titled “Multidisciplinary Partnerships Influencers Mapping” that the state contends shows the company’s efforts to promote Nucynta, including collaborations with doctors and researchers that the public believed to be unbiased sources of information.
The state filed the document with many of the passages and the chart blacked out. But in a subsequent response, Teva accidentally reproduced it without those redactions. The documents have since been put back under seal in the court file, along with tens of millions of other pages produced by the companies in the case.
Sparks said Johnson & Johnson unequivocally did not promote opioids to children, saying the company had conversations about children’s pain as part of normal business deliberations. He declined to discuss the court documents, saying they should not have been filed without the redactions.