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The Opioid Trials Have Begun

BIG PHARMA GOES ON TRIAL

We discussed the first case to go to trial in the Opioid Trials in our May 31, 2019 blog (see: The Beginning of the Opioid Trials). The State of Oklahoma is suing Johnson & Johnson for its alleged part in driving addiction and overdoses in the state. Mike Hunter, Oklahoma’s Attorney General, is seeking to hold J&J liable for creating a false narrative of an epidemic of untreated pain in the U.S. to which opioids were the solution. The theory is that Big Pharma not only deliberately downplayed the risks of opioids to doctors, but it funded organizations such as the American Pain Society and influenced medical policy and doctor prescribing to lead to huge surges in opioid consumption and eventually the worst drug epidemic in U.S. history.

The other defendants, Purdue Pharma and Teva Pharmaceuticals, settled with the state prior to trial. The only claim the state is pursuing is one of public nuisance; the claims of fraud, unjust enrichment and violations of the state’s Medicaid laws were dropped. The civil bench trial began on May 28, 2019, and after 28 witnesses over almost 6 weeks, the state rested on July 3, 2019. At the close of the state’s case, Johnson & Johnson moved for a directed verdict, arguing that the state had not met its burden. On Monday, July 8, 2019, the motion was denied and the trial was allowed to move forward.

The stakes in the Oklahoma case are extremely high. With app. 1,500 similar lawsuits filed by state, local and tribal governments around the country, and huge multi-district litigation consolidated before a federal judge in Cleveland, Ohio, all eyes are on the outcome of the case against Johnson & Johnson. J&J maintains that it participated in a lawful and strictly regulated industry, and that their products represented only a tiny fraction of the opioids used in Oklahoma. The State of Oklahoma claims that J&J’s product—a fentanyl patch marketed under the brand name “Duragesic”—created a public nuisance by coordinating with other opioid manufacturers to increase prescriptions across the country. The outcome of the Oklahoma case will impact how—and possibly if—future opioid cases are litigated.

In some ways, the arguments are reminiscent of the early days of environmental litigation when companies argued that their actions were completely in compliance with laws existing at the time and therefore they had no liability for the toxic waste sites that the manufacturing of their products had created. The passage of Superfund and RCRA and years of litigation and consent decrees made clear that companies that had profited enormously from these products bore legal responsibility for the environmental problems those products had created.

GEORGIA’S FIGHT

On April 17, 2019, Georgia’s Attorney General Chris Carr filed a lawsuit in Glynn County on behalf of 22 plaintiffs alleging harm perpetrated by multiple defendants involved with the pharmaceutical industry (pharmaceutical distributors, local pharmacies, and a proprietor of a local pharmacy). The lawsuit takes aim at why the enormous amount of prescription opioids was able to flood the state, despite the duty distributors and pharmacies have to report suspicious amounts of narcotics to authorities. For example, in 2010 alone in Glynn County, more than 1.52 million doses of oxycodone and more than 2.65 million doses hydrocodone were distributed. One defendant distributor, McKesson Corp., quadrupled its distribution of oxycodone to Glynn County between 2006-2011. Another distributor, Cardinal Health, doubled its distribution during the same period. Plaintiffs claims include: violations of Georgia’s Drug Dealer Liability Act; violations of RICO; negligence by distributor defendants; and breach of legal duty by distributor defendants.

The lawsuit filed in April was preceded by a lawsuit filed in Gwinnett County Superior Court in January of this year against major drug companies. The defendants in that lawsuit include Big Pharma names such as: Purdue Pharma, Teva Pharmaceuticals, Endo Pharmaceuticals, Par Pharmaceuticals, Mckesson Corp. Cardinal Health, and JM Smith Corp. This lawsuit seeks damages to compensate for public health costs related to the 1,014 overdose deaths in Georgia in 2017 that the CDC recorded.

WHY THE OPIOID TRIALS MATTER

No matter how you feel about Big Pharma’s role in the Opioid Epidemic, their participation in the nation’s recovery from the worst health crisis in U.S. history is crucial. There is a lot of evidence showing that manufacturers, distributors and pharmacies—every entity along the chain from manufacturer to victim—knew that the huge volume of opiates was excessive for the population, and the sign of a catastrophic problem. Yet no one stopped its flow. To the contrary; they encouraged it and profited from it. Now over a half million people have died and more are still dying. Tens of thousands of children lack parents. Our criminal justice system is overwhelmed and ill-equipped to handle the huge number of drug-related offenses fueled by addiction to opiates. Correcting the path we are on requires institutional reform on a national scale, and that requires the cooperation and resources of all stakeholders.

CONTACT YOUR ATTORNEY

If you or someone you know is suffering from substance use disorder, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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