NORMAN, Okla. (CN) – In the first opioid crisis lawsuit against drugmakers to reach verdict, a judge awarded Oklahoma $572 million Monday after finding the state successfully proved Johnson & Johnson created a public nuisance by aggressively pushing the drugs to doctors.
Cleveland County Judge Thad Balkman said Oklahoma met its burden proving “the defendant’s misleading marketing and promotion of opioids created a nuisance” resulting in a “public health crisis that must be abated immediately.”
The 42-page judgment concludes the marketing was commercial in nature, rejecting arguments for protected speech under the First Amendment. Balkman said Johnson & Johnson was told by their own experts that marketing opioids on their abuse potential was dangerous.
“They were told that the data they cited did not support their claims before they made them, and then again by the FDA after they had already started spreading that misleading message,” the judge wrote. “They knew the studies they were citing were incomplete, unsound, or fraught with misrepresentations. The defendants’ sales reps delivered those messages, and as the call notes and the sales trends demonstrate, Oklahoma physicians were influenced by the misleading messages defendants were delivering.”
Balkman’s ruling will have far-reaching implications as other state and local governments grapple with the opioid addition crisis. The bellwether trial was the first of approximately 2,000 opioid cases filed against drugmakers in federal and state courts nationwide. Over 1,400 of the federal cases have been consolidated in Ohio federal court, where the judge overseeing it has urged drugmakers to settle with state and local government plaintiffs.
Monday’s verdict comes one full month after the seven-week-long trial ended. Balkman said the $572 million award is meant to fund the immediate remediation of the nuisance, and punted to state lawmakers for further action.
“Whether more programs will be needed over time will be the determination of our politicians,” he said. “This is what the court can do at this time.”
Oklahoma Attorney General Mike Hunter told reporters the drugmaker “will finally be held responsible for thousands of deaths” that “left broken homes, families and communities” in the state.
“Our team proved the company used pseudoscience and misleading information to lead to the worst manmade public nuisance this country and this state has ever seen,” he said.
Hunter directly addressed Johnson & Johnson chief executive officer Alex Gorsky, citing the company’s participation in the Business Roundtable – an entity that last week tried to redefine the purpose of a corporation to include a “more inclusive prosperity” as opposed to just enriching shareholders.
“I challenge him to put his money where his mouth is and open his checkbook to pay this judgment,” Hunter said.
Johnson & Johnson said it will appeal the verdict and “is confident it has strong grounds to appeal.”
Defense attorney Sabrina Strong told reporters the company is “disappointed and disagrees” with the verdict.
“We have sympathy for all who suffer from substance abuse, but Johnson & Johnson did not cause the opioid abuse crisis in Oklahoma or this country,” she said.
Strong called the verdict a “radical departure” from case law.
Johnson & Johnson general counsel Michael Ullman said the verdict “disregards 100 years of precedent in public nuisance law.”
“This judgment is a misapplication of public nuisance law that has already been rejected by judges in other states,” Ullmann said. “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.”
Johnson & Johnson had repeatedly asked for the case to the be tossed, unsuccessfully arguing the state’s use of a public nuisance claim is invalid because it is intended to be used for property disputes. It reasoned that if the state’s claim succeeds, there is nothing stopping a similar lawsuit against fast food restaurants regarding their role in the obesity epidemic.
Oklahoma sued Johnson & Johnson, its subsidiary Janssen Pharmaceuticals, 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 pushing doctors to prescribe opioid painkillers while downplaying the addiction risks and overstating their benefits. Hunter blamed the drugmakers for 4,600 Oklahoman deaths from accidental prescription opioid overdoses between 2007 and 2017. He has repeatedly called Johnson & Johnson a drug cartel “kingpin.”
Purdue and its owners – the Sackler family – settled in March for $270 million. Israel-based Teva reached a similar settlement for $85 million two days before the trial began in May.
In the weeks before trial, the state dropped all claims except its public nuisance claim to prevent further delays caused by defense appeals.
Dr. Andrew Kolodny, co-director of the Opioid Policy Research Collaborative at Brandeis University, was the prosecution’s star witness. He testified Johnson & Johnson’s role in the opioid crisis may be worse than that of Sackler-owned Purdue, which has dominated headlines with several high-profile lawsuits regarding OxyContin.
“I was not aware of how bad Johnson & Johnson was until I had an opportunity to review the discovery documents,” Kolodny testified in June. “I had been more aware of Purdue’s misdeeds.”
He accused drugmakers of aggressively pushing doctors to prescribe the powerful painkillers for common pain.
“There were so many doctors who recognized this practice was harming patients,” he said. “It makes no sense to prescribe a highly addictive drug for common and everyday pain, but it was hard to speak out against it because it had become accepted.”
Defense witness Jason Flanary, a senior district sales manager for Janssen, pushed back hard against the accusations. He testified “the last thing we want to do” is mislead doctors with information that could hurt patients, that his employer wants to provide “fair and balanced” drug information.
“It could potentially harm your cousin or one of your best friends that seeks care from that doctor,” he testified in July. “Our representatives work on a daily basis with the doctors that they go to church with, that they see at the grocery store, that they see at the ball fields.”
On cross-examination, Flanary repeatedly refused to say Johnson & Johnson did anything wrong to help cause the opioid crisis. He eventually said “no one is perfect” when asked about his refusal, telling plaintiff’s counsel that “neither me or you” are perfect.
Another defense witness – Oklahoma City anesthesiologist Dr. Terrell Phillips – denied he was pressured to push opioids by Janssen’s sales representatives. He testified that 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 “handcuffed” with no choice but to prescribe opioids over the excluded treatment options.
Hunter disagreed, stating during closing arguments the defendants’ marketing scheme led to “utter confusion” regarding the addiction risks of the prescription painkillers.
The state sought $17.5 billion in damages over 30 years to pay for programs to treat the epidemic.