After Johnson & Johnson’s historic loss in the nation’s first opioid trial, there can be no doubt that Big Pharma faces overwhelming exposure from the opioid litigation. The findings by the court in the Oklahoma case have expanded public scrutiny to other responsible companies that caused the epidemic and resulting crisis. The Purdue Pharma bankruptcy has added another feature to the opioid litigation, with its full effect not being known at this juncture.
The J&J loss in Oklahoma where the judge found that J&J and its Janssen Pharmaceuticals Inc. unit “engaged in false and misleading marketing” of prescription opioids, was extremely significant to the opioid litigation. J&J must pay $572 million to remedy the addiction epidemic in the state of Oklahoma. That was the first in what I believe will be many more defeats for the manufacturers, including J&J, and distributors that caused the crisis. Let’s take a look at some takeaways from the Oklahoma trial.
The First Takeaway
The first major takeaway from Judge Balkman’s 42-page ruling – where half of the decision consisted of factual findings that were exceedingly critical of J&J’s actions – noted J&J’s downplaying addiction risks of prescription opioids. J&J also stressed the concept of “pseudoaddiction” to persuade doctors that patients who appeared hooked on opioids should be given more opioids for under-treated pain. According to the decision, J&J targeted government agencies with messaging aimed at downplaying the dangers of narcotic painkillers and paid substantial amounts of money to pain advocacy groups that exerted influence over physicians’ prescribing practices. Judge Balkman concluded by explaining that “Defendants’ opioid marketing, in its multitude of forms, was false, deceptive and misleading.”
The Second Takeaway
Secondly, the ruling may shift attention beyond Purdue by describing the activities of lesser-known companies that J&J previously owned, including opium poppy grower Tasmanian Alkaloids and the narcotic-raw-material importer Noramco. The ruling cited evidence that described the companies’ combined franchise as the “#1 supplier of narcotic [active pharmaceutical ingredients] in the United States, the world’s largest market.”
The Third Takeaway
A third takeaway from the ruling is that it dealt with the application of the state’s public nuisance law. The statute generally prohibits any unlawful act that “annoys, injures or endangers the comfort, repose, health or safety of others.” Specifically, Judge Balkman ruled that the statute is not limited to property-related nuisances, and that there is sufficient evidence that J&J “pervasively, systematically and substantially used real and personal property” to create a nuisance. J&J argued that the statute has traditionally been applied to resolve property disputes, not lawsuits involving the sale of goods. J&J is appealing that decision.
The Fourth Takeaway
Finally, this ruling creates major implications for the opioid multidistrict litigation (MDL) as mounting evidence continues to grow against the opioid pharmaceutical industry.
It will be interesting to see how the first bellwether trial comes out. The full effect of the Perdue Pharmacy bankruptcy is also yet to be determined. The opioid saga is still unfolding and lawyers at Beasley Allen will continue to seek justice for the many victims we represent who have been adversely affected by this crisis.
The Opioid MDL’s first bellwether
The first bellwether trial from the opioid multidistrict litigation (MDL) will start on Oct. 21. Drug manufacturers and distributors have laid out their battle plans for the trial. It appears the Defendants will attempt to blame the epidemic on what they describe as “corrupt doctors,” “criminal cartels” and even the local government Plaintiffs themselves. The drug companies, in trial briefs, outlined a litany of legal defenses aimed at evading billions of dollars in “abatement costs” that the northern Ohio counties of Cuyahoga and Summit will seek during the trial.
Cuyahoga and Summit counties have voluntarily excluded several Defendants, including pharmacy chains that are being sued in their capacity as drug distributors. One exception, however, is Walgreens Co., which remains in the bellwether trial.
The cases are County of Cuyahoga v. Purdue Pharma LP et al., (case number 1:17-op-45004); County of Summit et al. v. Purdue Pharma LP et al., (case number 1:18-op-45090); and In re: National Prescription Opiate Litigation, (case number 1:17-md-02804), all in the U.S. District Court for the Northern District of Ohio.
The opioid litigation is changing daily and I am sure the public is having difficulty keeping up. Because of the enormity of the opioid litigation, and the obvious need that existed, our firm put together an “Opioid Litigation Team,” which includes these lawyers: Rhon Jones, Parker Miller, Roger Smith, Ryan Kral, Rick Stratton, Will Sutton and Jeff Price. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments, as well as representing other entities in the multidistrict litigation (MDL), and individual claims on behalf of victims.
This story appears in the October 2019 issue of The Jere Beasley Report. For more like this, visit the Report online and subscribe.