NORMAN, Okla. (CN) – The Oklahoma judge that awarded the state $572 million in a bellwether opioid crisis verdict against Johnson & Johnson admitted Tuesday to committing a $107 million calculation error.
After a two-hour-long, post-verdict hearing Cleveland County District Judge Thad Balkman deadpanned: “That will be the last time I use that calculator.”
“I acknowledge the computing error in my Aug. 26 judgment,” he said. “The cost for Johnson & Johnson to pay for the development of and dissemination of neonatal abstinence syndrome treatment evaluation standards – including continuing education courses - is $107,683.”
It appears Balkman incorrectly entered three additional digits while calculating that portion of the verdict.
Balkman said he will take the parties’ remaining disputes over the rest of the award under advisement and will include the corrected calculation in a subsequent order. That order is expected to revise the judgment against Johnson & Johnson down to $465 million.
In his August verdict, Balkman concluded Oklahoma successfully proved Johnson & Johnson created a public nuisance by aggressively pushing highly-addictive prescription opioids to doctors in the state. He said Oklahoma 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 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.
Balkman said the company’s marketing was commercial in nature, rejecting arguments for protected speech under the First Amendment.
“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 42-page judgment stated. “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 said in August he is not persuaded by the state’s claims that it was take at least 20 years to abate the public nuisance, stating the $572 million only covers the first year. Oklahoma asked the judge to review the case each year to determine if the public nuisance has been abated and award more, if needed.
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.
Oklahoma Attorney General Mike 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,” demanding $17 billion from the company.
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.
Johnson & Johnson had repeatedly asked for the case to 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.
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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