By Sara Randazzo
The first major test of whether states can hold drugmakers
accountable for the opioid crisis is headed to an Oklahoma
courtroom.
In a trial starting Tuesday, lawyers for Oklahoma Attorney
General Mike Hunter will argue that the marketing practices of
Johnson & Johnson are to blame for widespread drug addiction
that has devastated the state.
The case is the first to go to trial of around 2,000 lawsuits
brought by states, local municipalities and Native American tribes
against pharmaceutical companies over their alleged role in fueling
the opioid epidemic.
The outcome is likely to help shape the sprawling litigation
nationwide, as both sides look for a win to use as leverage in
broader settlement talks. Cameras televising the action will
heighten national attention on the courtroom in the college town of
Norman, Okla.
Hanging over the trial will be the absence of a company that
initially formed the crux of the state's case: OxyContin maker
Purdue Pharma LP. The company and its owners, the Sacklers, agreed
in March to pay $270 million to settle the claims and avoid
trial.
Another drugmaker expected to be in the trial, Israel-based Teva
Pharmaceutical Industries Ltd., settled Sunday for $85 million
without admitting to wrongdoing.
Oklahoma is set to argue that Johnson & Johnson's alleged
deceptive marketing campaign created a "public nuisance" that will
cost the state as much as $17.5 billion to abate, including through
programs to fight drug abuse and addiction. The company argues
public-nuisance law, more often used for property disputes, is
being invoked improperly in an attempt to hold it accountable.
Oklahoma filed its lawsuit in the summer of 2017 in a wave of
similar actions brought by states hard-hit by the opioid epidemic.
Oklahoma's opioid-related overdose deaths exceeded the national
rate for years, peaking in 2009 at 15.5 deaths per 100,000 people,
according to the Centers for Disease Control and Prevention. In
court filings, Oklahoma says that in some years, the number of
painkiller prescriptions dispensed eclipsed the number of state
residents.
The hundreds of opioid cases broadly allege drug companies
helped create a culture of opioid dependence by pushing their drugs
for wide-ranging pain while playing down the risks of addiction.
Public-health advocates say prescription-pill abuse gave way to an
influx of deaths from heroin and illegal fentanyl.
After Purdue settled, the state focused its attention most on
Johnson & Johnson, a pharmaceutical and consumer-products
juggernaut that is already fending off thousands of claims over the
safety of its signature baby powder, pelvic mesh devices and other
medical products.
Oklahoma has zeroed in on two businesses the company owned for
decades that produced narcotic raw materials and active
pharmaceutical ingredients such as codeine, oxymorphone and
fentanyl that other drugmakers used to make painkillers. The state
says the ingredients businesses, which Johnson & Johnson sold
by 2016, make it a "kingpin." A company lawyer says the state
"ignores basic facts" and that the businesses were tightly
regulated.
Johnson & Johnson's opioid portfolio also includes a
fentanyl patch, Duragesic, used for chronic pain. It sold its
interests in another powerful painkiller, Nucynta, in 2015.
Teva and its subsidiaries make generic opioid painkillers,
including a generic version of OxyContin, along with two branded
drugs used for cancer pain. The company has argued that it didn't
market its generic drugs and said Sunday it "has not contributed to
the abuse of opioids in Oklahoma in any way."
The office of Mr. Hunter, Oklahoma's attorney general, said
Sunday that Teva's $85 million settlement "will be used to abate
the opioid crisis in Oklahoma" and that details will be announced
in the coming weeks.
Oklahoma officials slimmed down their case in the run-up to
trial, leaving only the public-nuisance claim, and agreed to have
it heard by a judge and not a jury.
Public-nuisance law, Johnson & Johnson is likely to argue at
trial, is more often used to mediate disputes over things such as
loud businesses, illegal dumping and overgrown hedges. "Public
nuisance is not and has never been a magic bullet for social
problems allegedly traceable to the sale of goods and services,"
Johnson & Johnson lawyers wrote in an earlier failed bid to
dismiss the case.
Adam Zimmerman, a professor at Loyola Law School, said state
attorneys general and local municipalities have for years sought to
use public-nuisance law to go after harmful products, with mixed
success in court. Part of the controversy, he said, is that as more
laws get passed "that play a role in regulating when businesses go
too far, it's harder to justify using this open-ended form of
nuisance law to regulate behavior."
A judge in North Dakota recently threw out that state's opioid
lawsuit against Purdue, ruling that a similar public-nuisance
argument failed because the law hasn't been extended to the sale of
goods.
Johnson & Johnson will also argue that Oklahoma has
presented no evidence that its marketing led to any opioid deaths
in the state. The state didn't point to a single doctor who wrote
an unwarranted prescription, they say, or offer any statistical
proof that the company is at fault.
Oklahoma state court Judge Thad Balkman has set aside two months
for the trial. He will hear testimony culled from more than 200
depositions and millions of pages of documents exchanged in the
case.
The state is expected to suggest Johnson & Johnson targeted
children in its opioid marketing. The company denies this, saying
it supported a campaign to help adolescents cope with pain that
didn't push any drugs and another to help teens understand opioid
risks.
Witnesses are expected to include former addicts or family
members of addicts, company executives, local doctors and experts
in areas such as medicine and economics.
Write to Sara Randazzo at sara.randazzo@wsj.com
(END) Dow Jones Newswires
May 27, 2019 08:14 ET (12:14 GMT)
Copyright (c) 2019 Dow Jones & Company, Inc.
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