A case that could signal the outcome of a flood of litigation against opioid drug manufacturers begins May 28th in Oklahoma.
The bench trial is poised to be the first of its kind to play out in court.
Oklahoma Attorney General Mike Hunter’s suit alleges Johnson and Johnson and Teva pharmaceuticals helped ignite a public health crisis that has killed thousands of state residents.
Court filings accuse the companies of overstating the benefits of opioids and understating their risks in marketing campaigns that duped doctors into prescribing the drugs for ailments not approved by regulators.
The companies 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 said. “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, the state’s strategy will be closely watched.
“And of course lurking in the background is the multistate 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,” Ausness said.
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.
Nora Freeman Engstrom, a professor at Stanford Law school, said lawyers in the other cases and the general public will finally get a chance 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 said.
Initially, Hunter’s lawsuit included Purdue Pharma, the maker of OxyContin. In March, Purdue Pharma settled with the state for $270 million dollars. Soon after, Hunter dropped all but one of the civil claims, including fraud, against the remaining defendants.
But he still thinks the case is strong.
“We have looked at literally millions of documents, taken hundreds of depositions, and we are even more convinced that these companies are the proximate cause for the epidemic in our state and in our country,” Hunter said.
But the legal case is complicated. Unlike tobacco, where states won a landmark settlement, Ausness says 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 said. “They are useful products so this is not a situation where the product is defective in some way.”
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 Judge James Hill questioned the idea of blaming a company that makes a legal product for the 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.” The state says it will appeal.
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 you know, ‘public nuisance’ makes it sound like the defendants are really bad,” Ausness said.
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 said, 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 AG’s, 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 said. “Of course the risk of that is you may lose.”
Oklahomans waiting for treatment
Oklahoma has the second highest uninsured rate in the nation and little money for public health.
Greg and Judy, who don’t want their last name used for fear of losing their jobs, 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 like a treatment plan for both,” Judy said. “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, 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. Judy hopes that it may provide comprehensive treatment that can help Greg.
“I wish he would stop using [opioids] but I love him. I’ll always be here,” she said.