By Steve Metzer
The Journal Record
NORMAN – Johnson & Johnson and subsidiary Janssen Pharmaceuticals, branded “kingpins” in creating an opioid abuse and addiction epidemic in Oklahoma, were held legally responsible for the crisis on Monday.
At the conclusion of a non-jury trial that played out over a month earlier this summer, Cleveland County District Judge Thad Balkman issued his formal judgment that J&J and Janssen should pay the state more than $570 million to abate a “public nuisance” that has claimed the lives of thousands of Oklahomans, affected countless families and has been extremely costly to communities. The state had asked for a multibillion-dollar judgment, claiming that it will take many years for the state to recover from the crisis.
“Based upon my findings that the defendants’ false, misleading, and dangerous marketing campaigns have caused exponentially increasing rates of addiction, overdose deaths and Neonatal Abstinence Syndrome, I conclude these are unlawful acts which (endanger) the health or safety of others,” Balkman’s ruling said. “The court finds that the sum necessary to carry out the abatement plan in year one is the sum of $572,102,028. Though several of the state’s witnesses testified that the plan will take at least 20 years to work, the state did not present sufficient evidence of the amount of time and costs necessary, beyond year one, to abate the opioid crisis.
In a press conference held after the verdict was read, Oklahoma Attorney General Mike Hunter quoted poet Robert Browning, saying that “a man’s dreams should exceed his grasp” in explaining how substance abuse experts and others stated a very high goal for recovering damages.
“But this is going to be an important step forward,” he said. “Certainly, we would have liked to walk out of here with $17 billion, but realistically we’ve been able to put together almost a billion dollars cumulatively from all of the defendants.”
Two earlier defendants in Oklahoma’s case, Purdue and Teva Pharmaceuticals, opted to settle, agreeing to pay the state $270 million and $85 million respectively.
Attorney Sabrina Strong, who represented J&J and Janssen at the press conference, said the companies will appeal.
“We have sympathy for all who suffer from substance abuse, but J&J did not cause the opioid abuse crisis in Oklahoma or anywhere else in this country,” she said. “We have many strong grounds for appeal and intend to pursue those vigorously.”
Strong was asked if the companies might have any regrets about not settling the Oklahoma case, and whether they might be considering new strategies for dealing with hundreds of other cases pending in other states.
“When you’re right, you fight,” she said, “and that’s precisely what you’re seeing here. These companies made medications for people suffering debilitating pain, and they did it responsibly. This is a company that cares about patients.”
By contrast, Hunter said J&J and its subsidiary Janssen were motivated more by bottom-line profits than by a sense of responsibility to Oklahomans or others.
“Our team proved that they used pseudoscience and misleading information to downplay the risks of opioids,” he said. “J&J will finally be held accountable.”
Over the course of 33 days of trial, the parties called 42 witnesses, submitted 874 exhibits into evidence and presented an additional 225 court exhibits.
On the opening day of the trial, Hunter accused the drugmaker defendants of a “cynical, deceitful, multimillion-dollar brainwashing campaign” to weave the widespread use of opioids into the cultural fabric of Oklahoma and the rest of the nation. Tens of thousands of Oklahomans have fallen into addiction as a result, he said, and at least 4,653 have died.
Hunter said multinational corporations led by J&J and motivated by greed orchestrated campaigns breathtaking in scope to oversell doctors and the public on benefits of painkillers like oxycodone and hydrocodone while all but denying their addiction risks.
“Money may not be the root of all evil, but I’ve learned this,” Hunter said, “money can make people and businesses do very bad things.”
The AG asked the court to order the defendants to pay $17.5 billion to fund remediation of a “public nuisance” he said J&J and others created.
The trial in Cleveland County was closely watched, as it was the first of many potentially to be heard around the nation stemming from lawsuits filed by other state, county, municipal and tribal governments. The U.S. Centers for Disease Control and Prevention reported 47,600 Americans died of opioid overdose in 2017 alone, and countless other lives and families have been affected over the past two decades.
Testimony in the trial was often emotional.
Craig Box, father of Austin Box, a former star football player at the University of Oklahoma, testified about how his family was blindsided by his son’s overdose death just days after his graduation. He had started using prescription painkillers because of injuries sustained playing football.
“I can’t explain what happens to you as a parent when your child dies,” Box said. “People just don’t understand what (opioids) can do and how quickly they can do it.”
Other powerful testimony was given on behalf of victims unable to speak for themselves.
Dr. Eric Pfeifer, the state’s chief medical examiner, read details from scores of autopsy reports revealing that many Oklahomans who died never intended to abuse drugs or to get high, but simply could not escape addiction. One victim, a 28-year-old woman found dead on her daughter’s birthday, had bought gifts and planned to make a cake to celebrate with her family on that day. Another, a 43-year-old woman, was found with 16 Duragesic painkiller patches on her body, which had turned a “cherry red” color as a result of the drug’s toxicity.
Another witness, Tonya Ratcliff, who has taken care of babies born with neonatal opioid withdrawal syndrome, testified about how such infants will scream and tremble uncontrollably, and about how they may struggle with side effects their entire lives.
“There is no question that the opioid crisis has caused an influx and an overwhelming crisis in children in foster care,” she said. “Our state is in crisis mode.”
Other witnesses helped the state to trace origins of the opioid epidemic. Dr. David Courtwright, a former college professor of medical history, testified that a philosophy of “narcotic conservatism” that prevailed in the medical community through most of the last century began to erode in the mid-1990s after decisions made by J&J, Purdue Pharma and other companies to flood the country with pain medications and to unleash armies of sales representatives on doctors.
“I do believe this is one of the worst if not the worst public health catastrophes we have ever faced as a nation,” another witness, Dr. Andrew Kolodny said. “When we think about epidemics, we typically think about viruses or disease outbreaks. This was not caused by a virus. This was a man-made epidemic.”
The state alleged that during the time the opioid epidemic was building two J&J subsidiaries, Noramco and Tasmanian Alkaloids, were the dominant worldwide suppliers of the raw active ingredient in opioid medications.
“I think it’s fair to characterize Johnson & Johnson as a kingpin in our opioid crisis because it was their opium that they were selling and that other drug dealers or pharmaceutical companies were selling,” Kolodny said.
In presenting their case, J&J and Janssen vehemently denied the state’s allegations that they put their own profits ahead of the well-being of Oklahomans. Kimberly Deem-Eshleman, a senior business director for Janssen, was on the stand for three days, and despite withering questioning about her company’s efforts to build “pain franchise” drugs worth hundreds of millions of dollars, insisted that sales reps were deployed only to educate physicians about options for using drugs approved by the federal Food and Drug Administration. Another Janssen employee, Oklahoma sales rep Jason Flanary, backed her up.
“We don’t build value by deceiving customers, and we don’t have the ability to go in and see customers on a consistent basis by deceiving customers or giving them false or misleading information,” he said.
Two Oklahoma physicians called by the defendants, Dr. John Muchmore and Dr. Kyle Toal, testified that they strongly disagreed with assertions that doctors were unduly influenced by drug company sales tactics. Muchmore, an endocrinologist who serves on the Oklahoma Drug Utilization Review Board, described as “utter nonsense” the notion that marketing would have left doctors in Oklahoma unaware of the risks of opioids. Toal, a thoracic surgeon, described the state’s efforts to cast blame on the drug company defendants as an oversimplification of a complex problem dating to well before the 1990s.
“If you ask me what caused the epidemic, I’m going to say it’s a perfect storm (that rose from) a desire to help a large group of people that were really suffering from pain,” he said. “In the ’80s and ’90s it was a huge problem, and the whole pain specialty started as a response to that. We desperately wanted to help them. It is multifactorial. It wasn’t one thing.”
J&J and Janssen presented evidence, too, that Oklahoma’s problems have resulted primarily from the use of illegal drugs, from the illegal “diversion” of opioids for unprescribed use and from the operation of “pill mills” by shady doctors.
Those assertions were countered by witnesses for the state, including Dr. Jason Beaman, who chairs the Department of Psychiatry and Behavioral Sciences at Oklahoma State University in Tulsa. He said the state fell victim to a sweeping “misinformation campaign” and “extreme manipulation” of doctors and other Oklahomans. Another witness, Terri White, chief officer at the Oklahoma Department of Mental Health and Substance Abuse Services, defended the state’s response to the opioid abuse and addiction epidemic.
“You (J&J and Janssen) would suggest that we bear responsibility for not running fast enough … for not being able to afford to equip Oklahomans … to save their lives, that this responsibility belongs to us? No! This is a mantle that we have picked up, that we’ve been carrying on our shoulders, that I’ve been carrying firsthand for 13 years. It is time that you took it back.”