On Monday, August 26, 2017, an Oklahoma judge ruled on the historic Johnson & Johnson opioid case, finding that the company and its subsidiaries did help to fuel the opioid crisis in the state and ordering a payment of $572 million from the company to help stymy the problem in the coming years.
Cleveland County District Judge Thad Balkman ruled over the first state opioid case to come all the way to trial and his ruling may serve as an indication of what to expect in the hundreds of similar lawsuits filed by state, local, and tribal governments consolidated before a federal judge in Ohio.
Before announcing his verdict, Balkman mentioned the seriousness of the opioid crisis in Oklahoma, saying, “The opioid crisis has ravaged the state of Oklahoma. It must be abated immediately.”
Judge Balkman believed that “the state met its burden that the defendants Janssen and Johnson & Johnson’s misleading marketing and promotion of opioids created a nuisance as defined by [the law],” and found that those actions compromised the health and safety of thousands of Oklahomans.
While Balkman seemed to highlight the seriousness of the opioid crisis throughout his decision, the $572 million fine for Johnson & Johnson was significantly less than the penalties requested by Oklahoma – a steep request of $17.2 billion. Judge Balkman felt that the $572 million judgment against Johnson & Johnson could pay for a year’s worth of services to help combat the opioid epidemic in Oklahoma.
Arguments
In the suit, Oklahoma argued that the companies created a public nuisance by initiating an aggressive and misleading marketing campaign that overstated the effectiveness of the drugs when used to treat chronic pain and understated the risk of addiction.
Oklahoma argued that Johnson & Johnson, which contracted with poppy growers in Tasmania, supplied 60 percent of the opiate ingredients that drug companies 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.
Throughout the lawsuit, attorneys for Johnson & Johnson argued that they were part of a lawful and heavily regulated industry under strict federal oversight, including by the U.S. Drug Enforcement Agency (DEA) and the U.S. Food and Drug Administration (FDA). Lead attorney for J&J argued during closing arguments that opioids serve a critical health need and address chronic pain affecting thousands of Oklahomans each day.
What Does the Future Hold?
This may not be the last we hear of this case. Johnson & Johnson plans to appeal the opioid judgment in Oklahoma, with Michael Ullmann, Executive Vice President and General Counsel at Johnson & Johnson saying, “Janssen did not cause the opioid crisis in Oklahoma, and neither the facts nor the law support this outcome… We recognize the opioid crisis is a tremendously complex public health issue and we have deep sympathy for everyone affected. We are working with partners to find ways to help those in need.”
“This judgment is a misapplication of public nuisance law that has already been rejected by judges in other states,” said Ullmann. “The unprecedented award for the State’s ‘abatement plan’ has sweeping ramifications for many industries and bears no relation to the Company’s medicines or conduct.”
“When you’re right, you fight,” said Johnson & Johnson’s attorney, Sabrina Strong, a partner at O’Melveny and Myers. “And that’s what you’re seeing here. We have sympathy for those who suffer from substance abuse. But Janssen did not cause the opioid crisis in this country.”
In addition to the cases in Ohio, suits were filed last week in West Virginia accusing Johnson & Johnson, as well as Teva, of misrepresenting the risks of their opioid products.
Further Reading
For a more in-depth review of the case, our sister publication Policy & Medicine Compliance Update will have an article on the trial itself in the September issue while the October issue will cover the settlement.