Johnson & Johnson was ordered to pay $572 million to the state of Oklahoma on Monday, after a judge found that the company deceptively marketed opioids and bore some responsibility for the state’s opioid crisis. The case is one of hundreds of opioid-related lawsuits ongoing around the country, and as the first one to reach a verdict, the decision is likely to reverberate beyond Oklahoma.
“You can argue that there are problems with the decision. You can argue that it’s a lot less than the $17 billion [Oklahoma] asked for. But you can’t take away the fact that we now have a decision, decided by a United States court, in which a large amount of damages were given,” says Nicolas Terry, executive director of the Hall Center for Law and Health at the Indiana University Robert H. McKinney School of Law.
Two other pharmaceutical companies, Purdue Pharma and Teva, were initially defendants in the same Oklahoma suit, but settled separately rather than go to trial.
Monday’s decision in Oklahoma rests largely on the state’s public nuisance law, which mark actions that interfere with or obstruct the rights of the community as criminal. Usually, these laws are applied in situations where something interferes with land, roads, or water—but Oklahoma’s is particularly broad. “The victory was not a foregone conclusion,” says Nora Freeman Engstrom, an expert in tort law and a professor at Stanford Law School. “The case only involved one defendent, and public nuisance claims can be difficult for plaintiffs, particularly when the underlying conduct does not involve property but product liability.”
Because Oklahoma’s public nuisance law is different from those in other states, this case might not determine the outcomes of legislation in other states, Terry says. “Other states could go in different directions. But the forcefulness of the judge’s opinion in this case—Judge Thad Balkman found that Johnson & Johnson engaged in “false, misleading, and dangerous marketing” that caused “exponentially increasing rates of addiction [and] overdose death”—is significant, Engstrom says.
“What is striking is how devastating Judge Balkman’s factual conclusions were,” she says. “And how similar they are to allegations made against other manufacturers. Everything he objected to, others have allegedly done. It’s a stinging indictment to marketing practices engaged in, not just by Johnson & Johnson, but by other defendants.” Those conclusions, she says, are not specifically tethered to any one law or statute.
This week it was reported that Purdue Pharma offered to pay $10 billion to $12 billion to settle all of its pending state and federal opioid lawsuits. The Sackler family, which owns Purdue Pharma, said that they would contribute $3 billion and give up ownership of the company. The company would also declare bankruptcy. Terry says he does not think the Oklahoma decision triggered that proposed resolution, and that Purdue had probably been having those conversations for some time. Their decision to settle, though, compared with Johnson & Johnson's push towards trial, reflects the differences in the size of the companies and the company cultures, he says.
“[Johnson & Johnson] made the call that they were going to fight. This is a company that fights lawsuits,” he says. Johnson & Johnson also has deeper pockets than Purdue, is also too big to declare bankruptcy in the same way.
In addition, through the opioid crisis, Purdue has been perhaps the most recognizable pharmaceutical company marketing opioids—they developed and marketed OxyContin—and information and documentation about their practices have been uncovered by ProPublica and Stat News. "You could certainly make the argument that with Purdue, we know of more smoking guns than with other manufacturers. Which means they are probably more in jeopardy of cases going against them," Terry says.
The judgement in Oklahoma suggests that other defendants who have been less central to the conversation will be held to answer for their conduct. “It indicates judges and juries are going to be willing to pin blame on others, not just Purdue,” Engstrom says.
Johnson & Johnson will appeal the Judge Balkman's decision, likely by calling into question the applications of the public nuisance law. While that process unfolds, attention will swing to Cleveland, Ohio, where the first trial in a federal case involving thousands of cities and counties and millions of individuals is set to start in October.
The federal case running in parallel with state-by-state cases means there are two separate sets of litigation. Right now, cases are proceeding to trial, but if the pharmaceutical companies look to settle, the process will be extremely complicated. “In the background, these parties are no doubt in back rooms trying to ram out a wickedly complicated global settlement,” Engstrom says. But any settlement encompassing all of the different cases (both federal and state) would have to pass muster with a number of different types of defendants, and be amenable to all the different plaintiffs, all of whom have separate interests, she says. “It would be the most difficult and technically complex settlement in the history of American civil litigation.”
from Popular Science | RSS https://www.popsci.com/johnson-johnson-opioid-lawsuit-purdue-pharma/
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