Johnson & Johnson Must Pay Half-Billion in Landmark Opioid Trial

Judge: Company Breached Public Nuisance Law

A judge in Oklahoma has ordered Johnson & Johnson to pay the state $572 million in the first trial of a drug manufacturer for the destruction wrought by prescription painkillers.

The amount fell far short of the $17 billion judgment that Oklahoma had sought to pay for addiction treatment, drug courts, and other services it said it would need over the next 20 years to repair the damage done by the opioid epidemic. Still, the decision heartened lawyers representing plaintiffs in the more than 2,000 pending opioid lawsuits.

Judge Thad Balkman’s finding that Johnson & Johnson had breached the state’s “public nuisance” law was a significant aspect of his order. Public nuisance laws are usually applied in cases where something interferes with a right common to the general public, traditionally roads, waterways or other public areas. Recently, plaintiffs have used the laws to press claims involving lead paint, guns or water or air pollution, with mixed results.

Johnson & Johnson’s lawyers contended that the state was contorting public nuisance law to the point of being unrecognizable.

In his ruling, Balkman also wrote that Johnson & Johnson had promulgated “false, misleading, and dangerous marketing campaigns” that had “caused exponentially increasing rates of addiction, overdose deaths” and babies born exposed to opioids.

The company, which contracted with poppy growers in Tasmania, supplied 60% of the opiate ingredients that drug manufacturers used for opioids like oxycodone, the state argued, and aggressively marketed opioids to doctors and patients as safe and effective. A Johnson & Johnson subsidiary, Janssen Pharmaceuticals, made its own opioids—a pill whose rights it sold in 2015, and a fentanyl patch that it still produces.

As a consequence of previous settlements with Purdue Pharma and Teva Pharmaceuticals, Oklahoma faced the steep climb of pinning the blame for its opioid crisis mainly on just one defendant.

“We’ve shown that J & J was at the root cause of this opioid crisis,” said Brad Beckworth, the lead attorney for the state. “It made billions of dollars from it over a twenty-year period.”

Michael Ullmann, the general counsel and executive vice president of Johnson & Johnson, referring to the company’s pharmaceutical subsidiary, said that “Janssen did not cause the opioid crisis in Oklahoma, and neither the facts nor the law support this outcome.

Between 2015 and 2018, 18 million opioid prescriptions were written in Oklahoma, a state of 3.9 million people. Since 2000, about 6,000 Oklahomans have died from opioid overdoses, and thousands more struggle with addiction. To calculate the Oklahoma award, Judge Balkman relied on the state’s detailed estimates of what it would cost to remediate the effects of the opioid epidemic. The state said it would need $893 million a year, or about $17 billion over 20 years.

The level of proof required by the state to back up its allegation that Johnson & Johnson was the “kingpin” of the opioid epidemic required that it demonstrate that the company was responsible for most of the opioid-related damage—from criminal justice to health care, foster care, and treatment facilities.

The state said that the company aggressively promoted the safety of opioids through campaigns tailored for women, teenagers, and veterans. From 2000 through 2011, J & J sales staff made some 150,000 visits to Oklahoma doctors, focusing on high-volume prescribers, the state said. In addition, the pharmaceutical giant supplied most of the nation’s opioid material to other drug manufacturers.

Johnson & Johnson said that the state could not show how Oklahoma’s problems, which the company said arose from the diversion of hydrocodone and oxycodone, could be linked to Janssen, which did not make those drugs. It cited black-box warnings on Duragesic, its fentanyl patch, which cautioned about the potential for abuse and addiction. And it said the state had not identified any doctor who had been misled by the company about the dangers of opioids.

Source: The New York Times, August 26, 2019