How Johnson & Johnson Ended Up At The Center Of A Trial In The Opioid Crisis

May 28, 2019
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MARY LOUISE KELLY, HOST:

Let's dig deeper now into Johnson & Johnson's role here and try to understand what is at stake for the company. To help us do that, we have called Sara Randazzo. She's covering the trial for The Wall Street Journal, and she joins us from outside the courthouse there in Norman, Okla. Sara, welcome.

SARA RANDAZZO: Thanks for having me.

KELLY: Is there an irony here that this is the first big trial in the opioid crisis and it involves not Purdue Pharma, the company that we've all heard so much about, that's made the most headlines and which makes OxyContin, but instead Johnson & Johnson?

RANDAZZO: Yes, it's certainly a weird dynamic, and that has taken the bite a little bit out of this opening trial. Purdue is obviously the big villain, if you can call them that, in these cases. And with them settled out, we're instead learning a lot more about Johnson & Johnson and the opioids they make, which frankly haven't gotten much attention up to this point.

KELLY: Right. We should mention that Purdue Pharma agreed back in March to pay - I think it was 270 million and settle claims and avoid having to go to a trial like the one you've been sitting in on today.

RANDAZZO: Correct.

KELLY: So to focus on Johnson & Johnson's role, I wasn't even aware that they manufactured opioid painkillers. What are the products under scrutiny at this trial?

RANDAZZO: Yeah, so it's interesting. There's actually two separate businesses that they're looking at from the company. The first is that they actually owned two businesses that they sold by 2016 that processed Tasmanian poppies into narcotic raw materials. And then they also had a company that turned those into active pharmaceutical ingredients that they used, I believe, for their own drugs as well as other companies.

So the state says that through that, they essentially had a role in all opioids that were hitting the market. But then separately they also have two of their own products. One is a fentanyl patch called Duragesic that they launched in 1991. And they still make it, but they don't actively market it. And the second is called Nucynta, and they had a few versions of that, and they sold their interest in it by 2015.

KELLY: As we just heard, the case that Oklahoma is making is a public nuisance case. How unusual is that as the legal strategy to sue a major pharmaceutical company?

RANDAZZO: It's fairly unusual. Public nuisance has been used in many other contexts with mixed results. But the state said earlier today that just because it hasn't been used in a case like this before doesn't mean that it can't be used now. So they're already trying to preempt the company's arguments that will say this is not the use of public nuisance; it's used more for, you know, an overgrown shrub or a loud neighbor that is causing a nuisance and making it, you know, so that your property is less valuable and that kind of thing. So it's definitely a unique and novel approach, and it will be interesting to see what kind of case law might come of this.

KELLY: And how exactly Johnson & Johnson attorneys go about trying to counter this case in court - but what is at stake for Johnson & Johnson in this trial?

RANDAZZO: Yeah, so Johnson & Johnson faces quite a few litigation matters over various drugs and products of theirs. So this kind of territory is nothing new for them but somewhat robust set of lawsuits that they're challenging.

KELLY: So this case, as we've said, is the first of a couple thousand of lawsuits that various jurisdictions have brought against pharmaceutical companies. To what extent do you expect whatever happens there in Norman, Okla., to set precedent and set the tone for litigation to come?

RANDAZZO: Nothing would be legally binding in terms of this one judge, and Oklahoma's decision wouldn't have to be followed by other courts but, certainly in a broader sense, will be closely watched. And if they lose here, it will certainly bolster plaintiffs around the country who are suing that say, great, there's one win on our side, and, you know, we can hopefully win our cases, too.

If the company succeeds, I feel like that will then give a lot of weight to the drug makers who say, OK, maybe we should fight these things and not settle because there's a chance. And so it definitely will be used a bit as a bellwether even though in other ways it's very much one state, one particular set of claims, you know, one company, whereas around the country, there's so many other companies and factors involved in these other lawsuits.

KELLY: Sara Randazzo - she is legal reporter for The Wall Street Journal, and we just reached her outside the courthouse in Norman, Okla. Sara, thank you.

RANDAZZO: Thank you so much. Transcript provided by NPR, Copyright NPR.