'This Case Will Set A Precedent': 1st Major Opioid Trial Opens In Oklahoma

May 27, 2019
Originally published on July 22, 2019 10:28 am

Updated at 6:50 p.m. ET:

The first case in a flood of litigation against opioid drug manufacturers opened on Tuesday in Oklahoma.

Oklahoma Attorney General Mike Hunter's suit alleges Johnson & Johnson, the nation's largest drugmaker, helped ignite a public health crisis that has killed thousands of state residents.

Johnson & Johnson is the sole defendant in the case after two other companies — Teva Pharmaceuticals and Purdue Pharma — both settled with the state before the trial began.

In opening statements, Hunter said the flood of opioid medications was the "worst manmade public health crisis in the history of our state and country." He said evidence would show that over 4,000 Oklahomans had died of overdoses from prescription opioids between 2007 and 2017.

State's attorney Brad Beckworth speaks during the opening statements during the opioid trial in Norman, Okla., Tuesday. The proceeding are the first public trial to emerge from roughly 2,000 U.S. lawsuits aimed at holding drug companies accountable for the nation's opioid crisis.
Chris Landsberger / AP

Brad Beckworth, an attorney working for the state, argued that Johnson & Johnson created an oversupply of the drugs, saying, "If you oversupply, people will die." He argued that Johnson & Johnson created that oversupply, and that its drug representatives pushed opioids into the state and encouraged doctors to prescribe them.

Johnson & Johnson should be responsible for cleaning up the mess, the state claimed.

Lawyers for the company argued in their opening statements that, far from creating a "public nuisance," as Oklahoma is arguing, their medication was critical for treating chronic pain.

"Janssen's conduct was not a nuisance," said Larry Ottaway, representing Johnson & Johnson and its subsidiary Janssen Pharmaceuticals. "They provided medically necessary mediations ... They were lawfully subscribed by doctors in the state of Oklahoma."

The bench trial — with a judge and no jury — is the first of its kind to play out in court.

What's the evidence?

Nora Freeman Engstrom, a professor at Stanford Law school, said lawyers in the other cases and the general public are eager to see what proof Hunter's office offers the court.

"We'll all be seeing what evidence is available, what evidence isn't available and just how convincing that evidence is," she says.

Most states and more than 1,600 local and tribal governments are suing drugmakers and distributors. They are trying to recoup billions of dollars spent on addressing the fallout tied to opioid addiction.

Initially, Hunter's lawsuit included Purdue Pharma, the maker of OxyContin. In March, Purdue Pharma settled with the state for $270 million. Soon after, Hunter dropped all but one of the civil claims, including fraud, against the remaining defendants.

Just two days before the trial, another defendant, Teva Pharmaceuticals of Jerusalem, announced an $85 million settlement with the state. The money will be used for litigation costs and an undisclosed amount will be allocated "to abate the opioid crisis in Oklahoma," according to a press release from Hunter's office.

In its own statement, Teva said the settlement does not establish any wrongdoing on the part of the company, adding Teva, "has not contributed to the abuse of opioids in Oklahoma in any way."

Precedent-setting case

The companies involved in this and other lawsuits against opioid manufacturers have a broad concern about what their liability might be, says University of Kentucky law professor Richard Ausness.

"This case will set a precedent," he says. "If Oklahoma loses — of course they'll appeal if they lose — but the defendants may have to reconsider their strategy."

With hundreds of similar cases pending — especially a mammoth case pending in Ohio — the state's strategy will be closely watched.

"And of course lurking in the background is the multi-state litigation in Cleveland, where there will ultimately be a settlement in all likelihood, but the size of the settlement and the terms of the settlement may be influenced by Oklahoma," says Ausness.

'There's nothing wrong with producing opioids'

But the legal case is complicated. Unlike tobacco, where states won a landmark settlement, Ausness points out that opioids serve a medical purpose.

"There's nothing wrong with producing opioids. It's regulated and approved by the Federal Drug Administration, the sale is overseen by the Drug Enforcement Administration, so there's a great deal of regulation in the production and distribution and sale of opioid products," Ausness explains. "They are useful products so this is not a situation where the product is defective in some way."

There's nothing wrong with producing opioids. ... They are useful products so this is not a situation where the product is defective in some way. - Richard Ausness, University of Kentucky

It's an argument that has found some traction in court. Recently, a North Dakota judge dismissed all of that state's claims against Purdue, a big court win for the company. In a written ruling that the state says it will appeal, Judge James Hill questioned the idea of blaming a company that makes a legal product for opioid-related deaths.

"Purdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products," the judge wrote, "regardless of any warning or instruction Purdue may give."

Now the Oklahoma case rests entirely on a claim of public nuisance, which refers to actions that harm members of the public, including injury to public health.

"It's sexy," Ausness says. "You know 'public nuisance' makes it sound like the defendants are really bad."

If the state's claim prevails, Big Pharma could have to spend billions of dollars in Oklahoma helping ease the epidemic. "It doesn't diminish the amount of damages we believe we'll be able to justify to the judge," Hunter says, estimating a final payout could run into the "billions of dollars."

Hunter's decision to go it alone and not join with a larger consolidated case could mean a quicker resolution for the state, or no money all, Ausness says.

"Particularly when we're talking about [attorneys general], who are politicians, who want to be able to tell the people, 'Gee, this is what I've done for you.' They are not interested in waiting two or three years [for a settlement], they want it now," he says. "Of course the risk of that is you may lose."

Greg and Judy hold hands at their home in Guthrie, Okla. The couple can't find integrated mental health and opioid addiction treatment for Greg in their area.
Jackie Fortier / StateImpact Oklahoma

Looking for treatment

Oklahoma has the second highest uninsured rate in the nation and little money for public health. The state is trying to win money from the drug companies to pay for treatment for people like Greg, who uses drugs and is afraid he'll lose his job if we use his last name.

Greg and his wife Judy say they haven't been able to find the integrated treatment that Greg needs for both his opioid addiction and his bipolar disorder. It's either one or the other.

"They don't give you ... a treatment plan for both," Judy says. "They just say, 'Here, you can talk to this person.' They don't recognize that it's like self-medicating."

The couple live in Guthrie, Okla., about an hour north of the courthouse where the opioid trial will take place. Greg says he's been addicted to opioids for 11 years. People with prescriptions sell him their pills — sometimes Greg binges and takes 400 milligrams of morphine at once, a huge dose.

Of the $270 million Purdue settlement, $200 million is earmarked for an addiction research and treatment center in Tulsa, though no details have been released. An undisclosed amount of the $85 million Teva settlement will also go to abating the crisis.

Judy hopes that the treatment center may eventually help Greg.

"I wish he would stop using [opioids], but I love him. I'll always be here," she said.

This story is part of NPR's reporting partnership with StateImpact Oklahoma and Kaiser Health News.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

MARY LOUISE KELLY, HOST:

Drug companies are facing lawsuits over their role in the nationwide opioid crisis. And tomorrow in Oklahoma, the first trial gets underway. The state is suing industry giant Johnson & Johnson over its marketing of opioids. Jackie Fortier of StateImpact Oklahoma reports.

JACKIE FORTIER, BYLINE: Greg lives in Guthrie, Okla., about an hour north of the courthouse where Johnson & Johnson is headed to trial. The state is trying to win money to pay for treatment for people like Greg. He worries he'll lose his job if we use his last name.

GREG: The first time I ever did use them, I had my wisdom teeth taken out. And they gave me a script for them, and I ended up taking, like, most of them at once and just kind of toughing out the pain. I enjoyed it. It felt good.

FORTIER: He says he's been addicted to opioids for 11 years. People with prescriptions sell him their pills. Sometimes, Greg binges and takes 400 milligrams of morphine at once - a huge dose. Even with health insurance, his wife, Judy, says they can't find integrated treatment for both his addiction and his bipolar disorder. It's either one or the other.

JUDY: They don't give you, like, a treatment plan for both, right?

GREG: No.

JUDY: So they just say, oh, well, here, you can talk to this person.

GREG: Right, yeah.

JUDY: I mean, they don't recognize like - it's, like, self-medicating.

FORTIER: Judy is afraid if he doesn't get the treatment he needs, he may overdose. Federal health officials found that prescription in street opioids were involved in more than 47,000 overdose deaths in 2017. Nora Freeman Engstrom is a professor at Stanford Law School.

NORA FREEMAN ENGSTROM: It's the equivalent roughly of two 747 aircraft crashing every week.

FORTIER: A majority of states and more than 1,600 local and tribal governments are suing drugmakers and distributors. They're trying to recoup billions of dollars spent on addressing the fallout tied to opioid addiction. Engstrom says the Oklahoma case will be the first in this wave of litigation.

ENGSTROM: So we'll all be seeing what evidence is available, what evidence isn't available and just how convincing that evidence is.

FORTIER: Oklahoma filed this lawsuit in 2017 against drug giants Purdue Pharma, Johnson & Johnson and generic drug-maker Teva Pharmaceuticals. In March, Purdue Pharma, without accepting blame, settled with the state for $270 million. Soon after, state attorney general Mike Hunter dropped all but one of the civil claims, including fraud, against the remaining defendants.

MIKE HUNTER: We have looked at literally millions of documents. We've taken hundreds of depositions.

FORTIER: And with just two days to go before a very public televised trial, Teva Pharmaceuticals announced an $85 million settlement with the state. Teva said it has not contributed to the abuse of opioids in Oklahoma in any way. That leaves Johnson & Johnson as the only opioid manufacturer headed to trial in Oklahoma. And the entire case rests on a claim of public nuisance.

RICHARD AUSNESS: It's sexy, you know? Public nuisance makes it sound like the defendants are really bad.

FORTIER: Richard Ausness is a law professor at the University of Kentucky. He says the Oklahoma attorney general's decision to not join with a larger consolidated case could mean a quicker resolution for the state or no money at all.

AUSNESS: And particularly when we're talking about AGs who are politicians who want to be able to tell the people, gee, this is what I've done for you, they're not interested in waiting two or three years. They want it now. So, of course, the risk of that is you may lose.

FORTIER: If Oklahoma loses, the state may foot a decades-long and multimillion-dollar bill for addiction treatment. And a defeat could signal to others that pursuing opioid manufacturers in court comes with a financial risk. For NPR News, I'm Jackie Fortier in Norman, Okla. Transcript provided by NPR, Copyright NPR.