Oklahoma Judge Lowers Opioid Damages by $107 Million

Judge Thad Balkman reads a summary of his decision in the Oklahoma opioid trial on Aug. 26, 2019. (Chris Landsberger/The Oklahoman via AP, Pool)

NORMAN, Okla. (CN) – The Oklahoma judge that awarded the state $572 million from Johnson & Johnson in the first opioid crisis lawsuit to go to trial formally reduced his damages award by $107 million Friday, admitting to a three-digit calculation error.

Cleveland County District Judge Thad Balkman ordered the pharmaceutical giant to make a one-time payment of $465 million, according to the 44-page final judgment. The judge caused confusion when he entered a judgment on Aug. 26 that stated Johnson & Johnson must pay over $107 million to fund state programs regarding neonatal abstinence syndrome treatment. He admitted during a hearing last month that the correct amount should have been $107,683.

“That will be the last time I use that calculator,” the judge deadpanned at the time.

Also Friday, Balkman rejected a defense request to further reduce the judgment by $355 million to account for settlements Oklahoma had reached with other opioid makers before trial.

OcyContin maker Purdue Pharma and its owners – the Sackler family – settled in March for $270 million. Israel-based Teva Pharmaceutical Industries reached a similar settlement for $85 million two days before the trial began in May.

Balkman concluded after the seven week-long trial that Oklahoma successfully proved Johnson & Johnson created a public nuisance by aggressively pushing highly-addictive prescription opioids to doctors in the state. He said the state met its burden to prove “the defendant’s misleading marketing and promotion of opioids created a nuisance” resulting in a “public health crisis that must be abated immediately.”

The judge ruled the company’s marketing was commercial in nature, rejecting arguments that it was protected speech under the First Amendment.

“In sum, this nuisance has negatively impacted the entire state,” Friday’s order states. “The public nuisance is the state’s opioid crisis and defendants were a direct and proximate cause of it.”

The landmark case is the first of approximately 2,000 opioid cases filed against drugmakers in federal and state courts nationwide to go to trial and verdict.

Oklahoma had asked for over $17 billion to abate the opioid crisis for the next 30 years. Balkman has resisted calls for further damages beyond the immediate remediation of the nuisance, punting to state lawmakers for further action.

“Whether more programs will be needed over time will be the determination of our politicians,” he said in August. “This is what the court can do at this time.”

Johnson & Johnson’s attorneys said Friday they plan on appealing the final judgment. They unsuccessfully argued the public nuisance claim does not apply because the law was intended to be used for property disputes. They argued at trial 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 and Purdue in 2017 on claims of fraud, unjust enrichment, public nuisance and violation of state Medicaid laws.

In the weeks before trial, the state dropped all claims except its public nuisance claim to prevent further delays caused by defense appeals.

Neonatal abstinence syndrome is a group of medical conditions resulting from an infant no longer being exposed to drugs in a mother during pregnancy. Over 21,700 infants were diagnosed in the United States in 2012 – a five-fold increase over 12 years – according to a 2016 study published in The New England Journal of Medicine. The rise in cases has mirrored the growth of opioid abuse by pregnant mothers during that time.

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