Oklahoma opioid ruling could provide framework for DE lawsuit

Judge Calls Opioid Crisis a ‘Menace’ to Society, Orders Johnson & Johnson to Pay $572 Million

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In the first civil trial of a drugmaker over an epidemic that has caused hundreds of thousands of overdose deaths, Judge Thad Balkman said prosecutors had demonstrated that J&J contributed to a "public nuisance" in its deceptive promotion of highly addictive prescription painkillers.

The state's attorney-general had filed the lawsuit, seeking US$17 billion to address the impact of the drug crisis on Oklahoma.

"The opioid crisis has ravaged the state of Oklahoma and must be abated immediately", Judge Balkman said, reading part of his decision aloud from the bench.

Still, J&J says it's been named in more than 2,000 lawsuits brought by state and local governments related to the marketing of opioids.

A federal judge in Cleveland is due to start hearing arguments from two of those local governments, Ohio's Cuyahoga and Summit counties, in a trial starting October 21.

Just two days before the trial began, another defendant, Teva Pharmaceuticals of Jerusalem, announced an $85 million settlement with the state.

Oklahoma Attorney General Mike Hunter accused J&J and other opioid makers of overstating the painkillers' benefits and understating their risks in relentless marketing campaigns that duped doctors into prescribing the drugs for ailments not approved by regulators.

"Certainly Delaware can point to the toll that opioid addiction and death has had on people that are addicted, on their sons and daughters, on law enforcement, on medical services, and to the extent they can demonstrate and tie specific costs to those things they stand in pretty good position", said Culhane. "We recognize the opioid crisis is a tremendously complex public health issue, and we have deep sympathy for everyone affected".

"The unprecedented award for the state's "abatement plan" has sweeping ramifications for many industries and bears no relation to the company's medicines or conduct", said Johnson & Johnson executive vice president Michael Ullmann.

Johnson & Johnson argued in its filing that the state's case was flimsy, saying that the public nuisance accusation is based on "radical theories unmoored from more than a century of Oklahoma case law".

Madeira says IN law may even be more favorable to the lawsuits than Oklahoma's.

"This case doesn't have precedent for their cases but I think they will be encouraged by the signal that it sends", said LaBelle. Moreover, citing numbers from IQVIA, Fadia wrote that J&J's opioid sales historically were lower than those of Purdue and Teva.

The U.S. Centres for Disease Control and Prevention estimates that over 47,000 died of opiate overdoses in the U.S.in 2017 alone. She says attorneys in other states will need to acknowledge that uncertainty, and may try to argue it'll take time to get the word out about expanded treatment programs to those who need them.

Gluck said states have hard definitions of public nuisance - noting such charges do not necessarily require a direct causal link - but Balkman's point on Johnson & Johnson's marketing is important regardless of one's state.

"It's a loss for J&J in that it validates the trial theory that pharma companies can be held liable for creating a public nuisance with their drug marketing", said Elizabeth Burch, a University of Georgia law professor who teaches about mass torts.

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