Defense Rests in Oklahoma’s $17.5B Bellwether Opioid Suit

NORMAN, Okla. (CN) – The defense rested Friday in Oklahoma’s $17.5 billion bellwether opioid crisis lawsuit against Johnson & Johnson, calling an anesthesiologist who blamed insurers and workers’ compensation laws – not drugmakers – for encouraging doctors to prescribe the highly addictive painkillers.

For its last witness during the seven-week bench trial, the defense called Dr. Terrell Phillips of Oklahoma City. He explained that many insurers and workers’ compensation laws reimburse doctors for only “reasonable and necessary” treatment that excludes physical therapy, counseling, injections and surgery. He said that leaves doctors with no choice but to prescribe opioids over the excluded treatment options.

Phillips testified the situation leaves him effectively “handcuffed.” He said patients with chronic pain are left improperly treated, leading to even depression and suicide.

He flatly refuted the state’s accusations that subsidiary Janssen Pharmaceuticals’ sales representatives pressured doctors to overprescribe the drugs.

“I am not influenced by their sales representatives,” Phillips testified. “What influences my decision is the patient in front of me.”

Oklahoma sued Johnson & Johnson, Janssen, Teva Pharmaceutical Industries and OxyContin maker Purdue Pharma in 2017 on claims of fraud, unjust enrichment, public nuisance and violation of state Medicaid laws for allegedly pushing doctors to prescribe opioid painkillers while downplaying the addiction risks and overstating their benefits. Oklahoma Attorney General Mike Hunter blamed the drugmakers for creating “the worst manmade public health crisis in our state’s history.”

Purdue settled in March for $270 million. Israel-based Teva reached a similar settlement in May for $85 million – two days before the trial began.

Johnson & Johnson and its subsidiary are the only remaining defendants. In the weeks before trial, the state dropped all claims except its public nuisance claim to prevent further delays caused by defense appeals.

On cross-examination, Phillips testified the defendants are paying him up to $450 per hour of preparation work and $10,000 per day of testimony. He denied the money was why he is testifying.

Plaintiff attorneys questioned Phillips about his earlier testimony where he declined to call the opioid crisis an “epidemic.” They played a recording of Phillips from 2016 before the Oklahoma Medical Association where he is heard saying “we have got an epidemic” when describing opioids.

“They told us we were underprescribing, that we need to prescribe more,” Phillips purportedly said in the recording. “That it is the patients’ right to have pain medicine so we all got on board, and when someone said they were hurting we said ‘OK, we are gonna give you something.’ Now it’s just the opposite, not everyone deserves pain medicine.”

Phillips said he stands by his testimony Friday and what he said in the recording.

Friday’s testimony supports defense testimony last week by Jason Fanary, a senior Janssen sales manager who denied under oath that his salespeople in Oklahoma and west Texas mislead doctors into pushing opioids. He insisted the defendant provides “fair and balanced” drug information.

Before court recessed for the weekend, defense attorneys asked Cleveland County District Judge Thad Balkman for a directed verdict. They claim the state failed to meet it burden of proving a public nuisance.

Balkman said he would take the request under advisement, meaning closing arguments will take place Monday.

Johnson & Johnson first filed a motion for a directed verdict last week, which Balkman rejected. He said there was “sufficient evidence for the state to proceed with the case.”

Balkman will take up to a full month before issuing judgment in the case, according to court officials.

The state claims over 4,600 Oklahomans died from accidental prescription opioid overdoses between 2007 and 2017.

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