Oklahoma Drops Some Claims To 'Refocus' Lawsuit Against Opioid-Makers

Apr 5, 2019
Originally published on April 5, 2019 11:56 am

A week after winning a $270 million settlement against Purdue Pharma, Oklahoma is dropping a laundry list of civil claims against drug companies at the center of the national opioid epidemic. Oklahoma Attorney General Mike Hunter said the move would "refocus" the lawsuit slated to go to trial May 28.

"As we got closer to trial, it became more and more apparent to us that our strongest cause of action against the defendants was public nuisance," Hunter said in an interview with public media's StateImpact Oklahoma. Public nuisance refers to actions that harm members of the public, including injury to public health.

Hunter's suit still accuses companies including Johnson & Johnson, Allergan, and Teva Pharmaceuticals USA of contributing to a costly addiction crisis through aggressive marketing and sale of prescription opioid pain medications.

If the state's public nuisance 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 said, estimating a final payout could run into the "billions of dollars."

Last-minute legal maneuverings in the case are being closely watched because this is one of the first major opioid cases slated to go to trial this year. Legal experts have long predicted that many of the specific claims against drug companies would eventually be dropped or amended.

Alexandra Lahav, a law professor at the University of Connecticut, said, "I think it's possible that [the state] might think that they don't have sufficient evidence against these defendants, as opposed to the Purdue defendant."

"There's particularly bad evidence against Purdue, both depositions of members of the Sackler family and disparaging emails," Lahav said. "I don't know what evidence there is with respect to Johnson & Johnson and Teva. It's possible that they're looking at a lower verdict than they would if Purdue ... is out of the picture."

The filing by Hunter's team on Thursday effectively suspended claims by Oklahoma that drug companies committed fraud, deceit, enjoyed "unjust enrichment" or made false claims for compensation under the state's Medicaid program.

Sabrina Strong, attorney for Johnson & Johnson and its subsidiary Janssen Pharmaceuticals, issued a statement to NPR and other media outlets saying the move by Hunter showed that most of the claims were without merit.

"The evidence presented at trial will show that Janssen's actions in the marketing and promotion of its important, FDA-approved prescription pain medications were appropriate and responsible," Strong said. "We will continue to defend against the remaining baseless and unsubstantiated allegations."

Hunter said scaling back the state's lawsuit would accelerate the trial process so that any payouts from drug companies could be used to help communities recover from the epidemic. He also argued that the claims could be reinstated later.

"The state has suffered a good bit," Hunter said. "This is the most prudent and the most strategically efficient way to proceed."

Oklahoma's filing also urges state court Judge Thad Balkman to hear the case without a jury present. Attorneys for drug companies are expected to respond to that request early next week.

This story comes from North Country Public Radio and StateImpact Oklahoma.

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STEVE INSKEEP, HOST:

A trial date is approaching for makers of opioids. And the state of Oklahoma, which sued them, is making adjustments to its case. Oklahoma reached a settlement with Purdue Pharma earlier this week. It will pay $270 million to Oklahoma for its role in the opioid crisis. The state is dropping some charges against other companies.

Here's Jackie Fortier of StateImpact Oklahoma.

JACKIE FORTIER: Oklahoma has dismissed claims that included fraud and unjust enrichment against three drug companies who the state alleges helped ignite the opioid crisis with aggressive marketing. Now the whole case rests on a public nuisance claim. Oklahoma Attorney General Mike Hunter says they streamlined the case.

MIKE HUNTER: It also allows us to avoid a lot of the pretrial - what I'm going to refer to as stalling tactics by the defendants.

FORTIER: The defendants are now opioid manufacturers Johnson & Johnson, Teva Pharmaceuticals USA and Allergan. With a trial date of May 28 fast approaching, these last-minute legal maneuverings are being closely watched. Oklahoma's is the first of the major opioid cases slated to go to trial this year.

ALEXANDRA LAHAV: So it is not at all unusual that claims will fall out before trial.

FORTIER: Alexandra Lahav is a law professor at the University of Connecticut. She says that last week's $270 million settlement by Purdue Pharma and the Sackler family, which will fund a drug addiction research and treatment center, has changed Oklahoma's case against the remaining drug companies.

LAHAV: And the evidence against Purdue is very bad. And so if these defendants don't have evidence like that against them - so if they don't have emails where they're being disparaging or dismissive of the opioids crisis, for example, where they seem to be taking advantage - then they're in a much better position than Purdue is.

FORTIER: Lahav says the Oklahoma case will give a clue as to how the drug companies may handle the roughly 1,100 other cases against them across the country.

LAHAV: I do think this does set a tone for the next six months to see, are defendants ready to settle? Or are defendants going to continue litigating these cases? It does seem that Purdue is ready to settle. But that is - you know, these other defendants are in a different position. The evidence against them is different.

FORTIER: If the state's public nuisance claim prevails, Big Pharma could have to spend billions of dollars in Oklahoma helping ease the epidemic. The state has also requested a bench trial, meaning the judge would decide if the drug companies are at fault, not a jury.

For NPR News, I'm Jackie Fortier in Norman, Okla. Transcript provided by NPR, Copyright NPR.