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An Historic Decision

HISTORIC DECISION

This week, Judge Thad Balkman issued his much-anticipated decision in the State of Oklahoma v. Johnson & Johnson trial. The trial was the first of its kind, pitting state interests against Big Pharma, and the ruling was the first of its kind, holding an opioid manufacturer liable for the harm of the epidemic created by the oversupply of narcotics. At one point, there were 18 million opioid prescriptions written in Oklahoma, a state of less than 4 million people.

In his 42 page opinion, Judge Balkman referred to the false claims that Johnson & Johnson pushed regarding the safety and efficacy of its narcotic painkillers. Much of the narrative surrounding opioid use was developed by organizations that were supposed to be independent, but a senate report issued in 2018 and noted in Judge Balkman’s decision showed that these organizations were often funded by Big Pharma. One in particular, the American Pain Society, was very influential and led the campaign into developing “pain as the fifth vital sign;” APS even copyrighted this slogan. (A second report issued earlier this year asserts that Big Pharma, specifically Purdue Pharma, corruptly influenced the World Health Organization guidelines regarding best practices for pain management in order to encourage the use of opioids.) The APS is named as a defendant in numerous lawsuits and recently filed for bankruptcy protection under Chapter 7.

The State of Oklahoma asked for $17.5 billion in damages to fund its long-term plan to abate the opioid crisis in its state. Judge Balkman awarded $572 million—over half a billion—to address the crisis in the first year of the state’s plan. However, Judge Balkman found that the state had not provided sufficient evidence of the time and money needed for its program after the first year, so future payments will be negotiated.

HISTORIC PRECEDENT

The precedent set by this first Opioid Trial is by far the bigger takeaway than the half a billion monetary award. Johnson & Johnson, one of the group of Big Pharma manufacturers, was held liable for its part in creating a public nuisance. The public nuisance? A state full of dangerous, addictive opioids, resulting in thousands of deaths over two decades; an overwhelmed foster care and Juvenile Court system; astronomical first responder costs; massive losses in worker productivity; and thousands of people with substance use disorder in need of rehabilitation.

Indeed, Oklahoma is just a microcosm of the public nuisance that exists in the country as a whole. With approximately 130 people dying every day due to opioid-related overdoses, and an estimated 700,000 dead since the epidemic began, a day of reckoning may finally be at hand. The multi-district litigation in Cleveland, Ohio, before U.S. District Judge Dan Polster is a consolidation of almost 2,000 cases from across the country. On August 6, a hearing was held on parties’ motion for certification of a negotiating class. Judge Polster has made it clear that he wants a global settlement before the first two cases are scheduled to go to trial this October. However, settlement talks stalled and jurisdictional issues about state court claims arose.

It is in this context that the Johnson & Johnson decision was issued this week. Before a finding of liability against Big Pharma in state court on a claim of public nuisance, manufacturers seemed willing to take their chances at trial. The fact that a Judge in North Dakota had dismissed a case against Big Pharma based on a public nuisance theory did not hurt the companies’ hubris, either. But a six-week bench trial resulting in over a half-billion dollar award against the drug company will make all manufacturers and distributors re-evaluate that litigation strategy.

DEEP-POCKETS AS STAKEHOLDERS

Johnson & Johnson has said it will appeal Judge Balkman’s decision. Critics argue that it is a misappropriation of public nuisance law to apply it to products—opioids—that are FDA approved and sold legally. However, as was pointed out in our previous blog, chemical companies, steel and aluminum manufacturers, etc, argued for decades that their products were safe and legally produced, sold and disposed of, but environmental litigation ultimately held them responsible for cleanup of toxic waste sites and awarded billions of dollars in damages.

Whether or not claiming an over-supply of opioids created a public nuisance which led to an epidemic of overdose deaths and substance use disorder in this country prevails, the legal authority to bring Big Pharma to the table will not answer the question of whether there is a moral authority to do so. Issues of legal theory and causation aside, many people see it as a moral imperative that the entities which profited from the products involved in this epidemic become stakeholders in the solution to it. With Congress and the Executive Branch apparently unable and unwilling to lead the country on a path to recovery, the Judiciary has become the national facilitator. Let’s hope that this role for the Courts leads to a true breakthrough in the nation’s worst public health crisis since the AIDS epidemic.

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