Did the people who brought you baby powder and baby shampoo also bring you the opioid crisis?
That will be the question before an Oklahoma judge starting Tuesday, as the first civil trial takes off on the long, nationwide runway of trials against prescription opioid manufacturers, distributors and sellers. Oklahoma is squaring off against Johnson & Johnson, the New Jersey-based, family-friendly giant, which produces a fentanyl patch.
On Sunday, another defendant in the case, Teva Pharmaceuticals Ltd., the Israel-based producer of generic medicines, including opioids, settled with Oklahoma for $85 million. Details of how the state will allocate the money have not yet been finalized.
In a statement, the company said, “The settlement does not establish any wrongdoing on the part of the company; Teva has not contributed to the abuse of opioids in Oklahoma in any way.”
There is great interest in the case, which originally included Purdue Pharma, and not only from lawyers in nearly 1,900 federal and state lawsuits who want to see how the evidence and legal strategies resonate.
“So much of the litigation has remained under seal or redacted that this will be the public’s first glimpse into Pandora’s box,” said Elizabeth Burch, a law professor at the University of Georgia who writes about mass torts. “Not only will a trial occur, but it will be televised.”
While the state has not said how much it is seeking, Oklahoma Attorney General Mike Hunter has said that companies have caused opioid-related damages worth billions of dollars. But Purdue Pharma already settled with the state in March for $270 million. With the company that has become embedded in the public’s mind as an arch-villain gone from the proceedings and Teva also out of the case, will Hunter be able to stick J & J with the rest of the bill?
Oklahoma, a largely rural state whose medical, social welfare and criminal justice systems have been ravaged by opioid addictions and deaths, has “home court advantage,” Burch said.
But the case is hardly a slam-dunk. The challenge in all opioid cases is how to closely tie each defendant to the carnage.
In its attempt to frame that narrative, Oklahoma is relying on just one legal theory, which itself has an uneven record.
The theory — that J & J violated public nuisance law — is also being raised in the first federal cases to go to trial in Cleveland, Ohio, currently set for Oct. 21. All eyes will look to the Oklahoma trial as an out-of-town rehearsal for that big show. How will witnesses perform? Which arguments will resonate?
“If J & J prevails in Oklahoma, they may feel they are gaining leverage” in the federal negotiations, said Alexandra Lahav, a professor at the University of Connecticut School of Law who is an expert on bellwether trials.
Through its pharmaceutical division, Janssen, J & J manufactured Nucynta, an opioid tablet, which it divested in 2015. It still makes Duragesic, a fentanyl patch. Teva produces Actiq and Fentora, for breakthrough cancer pain.
Through a company spokesman, J & J said that since 2008, its opioid medications have amounted annually to less than 1% of the opioid prescriptions written nationally. A Teva spokeswoman said its medications were administered infrequently in Oklahoma: Between 2007 and 2017, she said, the state reimbursed just 245 Actiq and Fentora prescriptions.
The case is a bench trial, heard before Judge Thad Balkman without a jury, but media attention and courtroom cameras will essentially render the public into a collective jury.
Publicity heightens pressure. The case already has a political shadow: Not only is Hunter an elected official, but Balkman, a former state legislator, is also elected.
J & J also has reason to be wary of the spotlight: It wants to protect its family-friendly branding. In redacted court documents, Oklahoma has accused J & J of targeting patient groups for opioid sales, including veterans, older adults and children.
In a statement, John Sparks, a lawyer for J & J and Janssen, said, “Janssen did not market opioids to children, and the state’s suggestion to the contrary is false and reckless.” Instead, he continued, Janssen had designed a drug-abuse prevention program with a school nurse association.
J & J, with 2018 sales of $81.6 billion, is already waging a public-relations campaign as it continues to fight lawsuits alleging that its talc-based baby powder caused cancer in some consumers.
If Oklahoma is not ground zero for the emergency, it’s “certainly close,” Hunter said recently during a panel on opioids at the Bipartisan Policy Center in Washington. Between 2015 and 2018, he said, there were 18 million opioid prescriptions written in a state with a population of 3.9 million. In a 15-year period, overdose deaths increased 91%.
In briefs, lawyers for Hunter who, like many government officials bringing such cases, is using outside counsel, have called J & J the “kingpin behind the public-health emergency.”
J & J says the company manufactured drugs that played only a minor role in the market, even as it was conducting business that was heavily regulated and approved by government agencies.
The company stopped marketing Duragesic by 2008, court papers said, and divested Nucynta in 2015, the year the company ceased marketing opioid medication altogether.
J & J’s Sparks said that Oklahoma “attempts to group all manufacturers together with general and broad allegations.”
In 2017, Oklahoma became one of the first states to file a prescription opioid lawsuit.