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The Beginning of the Opioid Trials

THE TRIAL OF THE CENTURY

There is no white bronco, no ill-fitting pair of gloves, and no dream team. But there are deaths—thousands of deaths—and instead of a bloody knife, the alleged “murder weapon” is opioids. In Norman, Oklahoma, the State of Oklahoma is suing Johnson & Johnson, the nation’s largest drug manufacturer, for allegedly helping to create a public health crisis that has killed thousands of the state’s residents between 2007-2017. Originally, the state filed the lawsuit against Purdue Pharma and Teva Pharmaceuticals as well; they both settled with Oklahoma prior to trial. Purdue reached a settlement of $270 million in March that includes $102.5 million for a foundation to establish a Center for Addiction Research and Treatment at Oklahoma State University. In addition, the Sackler family, the owners of Purdue Pharma, will pay an additional $75 million in personal funds over the next 5 years toward the foundation. Of the remaining settlement money, $12 million will be allocated toward cities and towns for costs associated with responding to the opioid crisis, and $60 million will go toward litigation costs. Teva announced a settlement of $85 million last week, right before trial; the terms were not immediately disclosed.

The State is arguing that Johnson & Johnson—more specifically its subsidiary Janssen Pharmaceuticals—created an over-supply of opioids, which led to doctors in Oklahoma over-prescribing them, which in turn led to people overdosing on them. The State has introduced statistics showing that there were 135 opioid pills available to every adult in Cleveland County, Oklahoma, the county where the trial is taking place. The State also pointed to the 149,183 sales visits made to doctors in Oklahoma between 1999-2005. The State’s mantra during the trial is: “If you oversupply, people will die.”

The Oklahoma trial is the first of the many lawsuits filed by 44 states against Big Pharma to go to trial, and other litigants are watching it closely to see how the strategy plays out. It is a bench trial with Judge Thad Balkman, and although no jury is impaneled, the court room is packed and it is being live-streamed to the public. This case could set the precedent for the cases that follow, even those that do not go to trial; for example, the multi-state litigation pending in Cleveland, Ohio is headed toward a record-breaking settlement, and the Oklahoma trial is likely to affect the size and terms of that settlement.

NORTH DAKOTA: OUTLIER OR BELLWETHER?

A recent ruling by Judge James Hill in North Dakota’s case against Purdue Pharma may spell trouble for the State of Oklahoma. Judge Hill converted Purdue’s motion to dismiss into a motion for summary judgment and ruled in favor of Purdue Pharma on all its arguments. Judge Hill ruled that North Dakota’s state law claims regarding Purdue’s labeling were preempted by federal law, specifically by the FDA regulations; therefore the state could not claim that Purdue’s marketing was fraudulent under state law. As for causation, Judge Hill ruled that: “The connection between the alleged misconduct and the prescription depends on multiple, independent intervening events and actors…The state’s effort to hold one company to account for this entire, complex public health issue oversimplifies the problem.”

Experts have pointed out that one of the legal hurdles faced by opioid plaintiffs is that the product allegedly creating liability is legal, not inherently hazardous, not defective, and when taken as prescribed or labeled, does not lead to overdose. As Judge Hill points out, multiple intervening events must transpire in order for addiction and overdose to occur: oversupply, over-prescription, and abuse of the drug.

PUBLIC NUISANCE

Oklahoma is proceeding on a public nuisance theory against Johnson & Johnson. A public nuisance, as Oklahoma law defines it, is an interference with the public’s health and safety rights. This theory of law usually applies to environmental cases or property rights, and some legal experts think it is a risky way to approach the opioid claims. In fact, in February of this year a Delaware judge dismissed that state attorney general’s nuisance claims against Purdue Pharma. The Delaware court found that Delaware public nuisance law does not recognize claims based on products, noting that there is a clear national trend to limit public nuisance to land use. The Delaware court went on to say that the state had failed to allege a public right with which the defendant Purdue Pharma had interfered: “A defendant is not liable for public nuisance unless it exercises control over the instrumentality that caused the nuisance at the time of the nuisance.”

The issue of control by Big Pharma over what causes the public nuisance may be the bigger hurdle for opioid plaintiffs to clear than the issue of what constitutes a public nuisance. Can one manufacturer be held accountable for the harm caused by an entire industry and by society at large? Many intervening events can be said to have occurred between the manufacture of the prescription opioids at issue and the thousands of overdoses for which the states are seeking damages. Even if over-supply and deceptive marketing are acknowledged to have played a part in the epidemic of deaths, how big a part did they play and how do you quantify the damages the defendants should pay?

These questions are at the heart of the first state opioid trial against Big Pharma. With an estimated 130 people dying a day due to opioid-related deaths, the stakes of this trial could not be higher. This trial and the thousands of lawsuits filed by other AGs are not about finding blame for the past; they are about funding the changes for the future that are necessary to beat the Opioid Epidemic.

CONTACT YOUR ATTORNEY

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

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