Opioid Resource Center

Opioid Resource Center

May 28, 2019
3 min read

Billions of dollars potentially at stake as Johnson & Johnson stands trial for alleged role in opioid epidemic

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David Noll
David L. Noll

Opening arguments were slated to start Tuesday, May 28, in the second opioid lawsuit that the state of Oklahoma has brought against an opioid manufacturer, according to a press release from the Oklahoma attorney general’s office.

Legal experts told Healio Primary Care before opening arguments began that though the location and medication class are identical to the ones that served as the backdrop for the state’s $270 million settlement with Purdue Pharma, the legal arguments both sides will make and financial damages being sought are different.

“Oklahoma’s multibillion-dollar lawsuit against Johnson & Johnson is about the quantity of drugs sold. The state contends that it should have seen something was wrong earlier than they did, and that they profited from turning a blind eye to abuse,” David L. Noll, JD, associate professor of law at Rutgers Law School, said in an interview.

“Conversely, the crux of the Purdue Pharmaceutical lawsuit settled earlier this spring was based on that company putting out marketing materials that misrepresented the risks and benefits of opioids,” he continued.

Danielle Pelfrey Duryea, JD, director and founder of the Health Justice Law & Policy Clinic at the School of Law at the University at Buffalo, explained that there will be a shift in the defendant’s strategy after efforts to have the case dismissed were unsuccessful.

“Johnson & Johnson was among the companies who made a last-ditch effort to get the whole case dismissed several weeks ago, arguing that the basis of Oklahoma's lawsuit — the state’s public nuisance law which applies when an injury or damage is felt by the general public, rather than by an individual — should not be used to hold companies accountable for widespread public policy problems like the opioid crisis,” she said.

“Some business interests have successfully made that claim over the years, but the judge in the Oklahoma case rejected that argument. Given that their drugs are legal and were approved by FDA for a legitimate medical purpose, the defendants will likely argue that there are just too many intervening factors between their legal production of the drugs and the effects of the whole epidemic: prescriber decisions, patient decisions, the introduction of street fentanyl and heroin, etc.,” Pelfrey Duryea told Healio Primary Care.

The judge presiding over the Oklahoma trial has allowed cameras in the courtroom, Noll said, adding that particular decision could have a “tremendous impact” on the proceedings and could potentially severely damage professional reputations that took decades to create.

Pelfrey Duryea and Noll said other parties involved in opioid-related litigation are watching the case closely.

Opening arguments were slated to start Tuesday, May 28, in the second opioid lawsuit that the state of Oklahoma has brought against an opioid manufacturer, according to a press release from the Oklahoma attorney general’s office.

“This case will influence all the cases that follow,” Pelfrey Duryea said. “If Oklahoma wins or, in the alternative, is able to obtain favorable settlements from all the defendants, the amounts of the awards or settlements will be anchors that other jurisdictions seeking recompense will look to. If the companies win (or even if they settle for terms perceived as more favorable to them than to the state) that would significantly affect the trial versus settlement risk calculus for states, localities and defendant companies alike.”

“All the states who have cases pending will take a look at how their cases stack up against Oklahoma. If they think their case is not as strong as this one, they may step up their efforts to settle ahead of trial,” Noll added. “There is no legal binding effect for the other states to do this, but there could be a follow-on effect that affects the other parties going into trial.”

The state of Oklahoma also announced that it had reached an $85 million settlement agreement with Teva Pharmaceuticals, USA, Inc. and that claims against Cephalon, Inc., Watson Laboratories, Inc., Actavis, LLC., and Actavis Pharma, Inc., F/K/A Watson Pharma were resolved, thus removing those companies from the trial proceedings that were scheduled to begin Tuesday - by Janel Miller

Disclosures: Noll reports previously working with the Sackler family, the family that owns Purdue Pharmaceuticals; Pelfrey Duryea reports previously representing pharmaceutical and device companies in government enforcement matters.