The first trial over the opioid crisis opened Tuesday, with lawyers for the state of Oklahoma asking a judge to rule that Johnson & Johnson should pay tens of billions of dollars to fund an abatement program.
Four lawyers for the state, including Attorney General Mike Hunter, told Cleveland County District Court Judge Thad Balkman in an opening statement that Johnson & Johnson’s oversupply of the prescription painkillers led to massive addictions and deaths, according to coverage of the trial in Norman, Oklahoma, provided by Courtroom View Network. Pursuing a single claim of public nuisance, the state is seeking monetary damages to provide treatment and other programs.
“If you oversupply, people will die,” said Brad Beckworth, a partner at Nix Patterson in Austin, Texas, in an opening statement that included several charts and graphs. “The reason we have an opioid crisis is that simple. If you oversupply, people will die.”
Michael Burrage, co-founder of Whitten Burrage in Oklahoma City, said Johnson & Johnson should pay more than $800 million per year for as many as 20 years—or, a “bit shy of $13 billion”—to abate the crisis.
“The day of reckoning is now here for Johnson & Johnson,” he told the judge. “You need to make Johnson & Johnson clean up this mess that they had made in Oklahoma. You are the only person that can make them do that, and it should happen at the end of this trial, in this courtroom in Norman, Oklahoma.”
Johnson & Johnson attorney Larry Ottaway of Oklahoma City’s Foliart Huff Ottaway & Bottom insisted that many of the assertions made by the state’s lawyers simply weren’t true. The state’s chart, for instance, didn’t show the amount of misuse of Johnson & Johnson’s painkillers, which also make up less than 1% of opioids in the state.
Further, he said, the U.S. Food and Drug Administration approved Johnson & Johnson’s opioids, including warnings of abuse on their labels, as long as there was a balance between the risks and benefits.
“At every step, the government was involved with oversight and endorsement,” he said. “You heard a very clever catch phrase: ‘Oversupply, and people will die.’ You may not be old enough, but I am, to remember, ‘if the glove fits, you must acquit.’ Same pentameter, same kind of catch phrase. The trouble with it is, the government controls the amount of active pharmaceutical ingredient that can come into the country.”
The Cleveland County District Court trial wraps up in two months. Lawyers suing opioid manufacturers and distributors, in both state and federal courts across the country, are closely watching the trial and its outcome. A larger case is set for trial Oct. 21 that would be the first in the multidistrict litigation before U.S. District Judge Dan Polster, in Cleveland, which involves more than 1,600 cases, primarily brought by cities and counties, over the opioid crisis.
The Oklahoma case initially named Purdue Pharma and Teva Pharmaceuticals, along with Johnson & Johnson’s Janssen Pharmaceuticals. Purdue settled out of the case in March for $270 million. On Sunday, Teva agreed to pay $85 million, leaving Johnson & Johnson as the sole defendant.
“In short, we’ve dealt with some of the fallout of defendant’s actions. It’s time to hold them responsible for their actions,” Hunter said Tuesday. “I believe the evidence will show that justice for Oklahomans means requiring these defendants to clean up the terrible tragic mess that they have left us with in our state, whatever the cost.”
Lawyers for the state of Oklahoma argued that Johnson & Johnson’s aggressive marketing of its opioids led doctors and hospital staff, and others, to believe the painkillers were not addictive and could be appropriate for pain treatment in the long term.
Beckworth said there was no crisis when opioids first arrived on the market, but, after 1996, Johnson & Johnson’s sales representatives took doctors out to dinner, as part of a more aggressive marketing campaign, to convince them to use their opioids in an effort to boost sales.
Also, despite a corporate policy of being responsible for its communities, Johnson & Johnson did not participate in the various task forces that the state set up to deal with the opioid crisis.
“J&J left, and we ended up holding the bag,” Beckworth said.
And the costs of cleaning up are in the billions, said Reggie Whitten, another co-founder of Whitten Burrage, for the state of Oklahoma.
“They changed the way this country viewed opioids,” he said. “It’s really, really difficult to fix it.”
Ottaway, Johnson & Johnson’s lawyer, countered that doctors take into account their own medical knowledge and other resources to decide whether to prescribe opioids—not just the word of its sales reps.
And he questioned why state agencies, which knew about potential opioid abuse as early as 2001, didn’t do more to stem the epidemic.
“It’s more than simple slogans,” he said. “But if we’re talking about lessons, we’re a state that is not poor. We are rich in resources and people. We can solve this problem, but we don’t need to do this to do it. Why are we here? Because when you’re right, you fight.”