Cleveland County District Judge Thad Balkman ruled that Johnson & Johnson (J&J), the giant pharmaceutical company, is liable for stoking an opioid epidemic in Oklahoma by deceptively marketing painkillers. The judge ordered J&J to pay $572 million “to remedy the devastation wrought by the epidemic on the state and its residents,” according to an article by Lenny Bernstein in the Washington Post.
According to Balkman’s decision, which he read from the bench Monday, August 26, “The opioid crisis has ravaged the state of Oklahoma and must be abated immediately. As a matter of law, I find that defendants’ actions caused harm, and those harms are the kinds recognized by [state law] because those actions annoyed, injured or endangered the comfort, repose, health or safety of Oklahomans.”
More than 40 states are ready to seek similar verdicts against the pharmaceutical industry. This ruling in the first state case to go to court is likely to influence strategies on both sides. While plaintiffs’ attorneys in other states cheered the decision, hoping it would be a model for a huge federal lawsuit brought by nearly 2,000 cities, counties, Native American tribes and others that will start in Cleveland, Ohio, in October, J&J -- which has denied any wrongdoing -- said it would appeal. According to company attorney Sabrina Strong, “We are disappointed and disagree with the judge’s decision. We believe it is flawed. We have sympathy for those who suffer from opioid use disorder, but Johnson & Johnson did not cause the opioid abuse crisis here in Oklahoma or anywhere in this country.”
While Balkman did not give the state everything it sought — $17.5 billion over 30 years for treatment, emergency care, law enforcement, social services and other addiction-related needs, he concluded that it would cost $572 million to address the crisis in the first year based on the state’s plan. He added that Oklahoma did not provide “sufficient evidence” of the time and money needed to respond after that time. Oklahoma Attorney General Mike Hunter described the verdict as a “great triumph” two years in the making.
Elizabeth Chamblee Burch, a professor at the University of Georgia School of Law, said that other states will almost certainly adopt some of Oklahoma’s strategy, such as arguing Johnson & Johnson’s culpability because it had two subsidiaries that produced, refined and supplied the ingredients for opioids to many other companies. Because state laws are so different, she said it was not clear whether other plaintiffs would be successful at proving that J&J harmed their residents.
Hunter filed the suit in 2017 against three major drug companies, accusing them of creating “a public nuisance” by “showering the state with opioids while downplaying the drugs’ addictive potential and persuading physicians to prescribe them even for minor aches and pains.” While physicians used to reserve opioids for cancer, post-surgical pain and end-of-life care, more than 6,000 Oklahomans have died of painkiller overdoses since 2000, as the number of opioid prescriptions dispensed by pharmacies reached 479 per hour in 2017.
Although J&J’s products — two prescription opioid pills and a fentanyl skin patch sold by its subsidiary, Janssen Pharmaceuticals — were a fraction of the painkillers consumed in Oklahoma, Hunter called the company an industry “kingpin,” because two other companies it owned had grown, processed and supplied 60 percent of the ingredients in painkillers sold by most drug companies. “At the root of this crisis was Johnson & Johnson, a company that literally created the poppy that became the source of the opioid crisis,” according to Hunter.
Oklahoma said that J&J took an active role in changing doctors’ reluctance to prescribe opioids by creating an aggressive campaign that targeted the least knowledgeable physicians. J&J’s “marketing scheme was driven by a desire to make billions for their pain franchise,” Hunter said. “To do this, they developed and carried out a plan to directly influence and convince doctors to prescribe more and more opioids, despite the fact that defendants knew increasing the supply of opioids would lead to abuse, addiction, misuse, death and crime.”
Oklahoma settled in March with Purdue Pharma, manufacturer of OxyContin, accepting $270 million from the company and its owners. In May, the state settled with Teva Pharmaceuticals, an Israeli-based manufacturer of generic drugs, for $85 million.