Trial News

An Oklahoma judge has found that Johnson & Johnson’s opioid marketing within the state was “false, deceptive, and misleading,” fueling Oklahoma’s drug abuse epidemic and violating its public nuisance law. The ruling—the first to hold a pharmaceutical company liable for its role in the ongoing opioid epidemic—comes shortly before the start of a bellwether trial in the large opioid multidistrict litigation (MDL) centralized in Ohio. (Okla. ex rel. Hunter v. Purdue Pharm., LP, 2019 WL 4019929 (Okla. Dist. Ct. Cleveland Cnty. Aug. 26, 2019).)

The state of Oklahoma sued Johnson & Johnson (J&J), Purdue Pharma, Teva Pharmaceuticals, and several subsidiaries in Oklahoma state court, seeking to abate the damage they allegedly caused by pushing opioids into the state. Purdue Pharma and Teva settled for $270 million and $85 million, respectively, leaving J&J as the primary defendant. During the seven-week bench trial, the plaintiff argued that J&J unlawfully created a public nuisance through its misleading promotion of opioids.

Although the parties agree that Oklahoma is suffering an opioid crisis, J&J claimed that it was not liable because it and its subsidiaries had simply provided legal materials regulated by the FDA and other federal and state agencies. J&J also denied that its marketing had misled any Oklahoma doctors or patients about the risks of opioid use.

Judge Thad Balkman rejected these arguments, concluding that J&J had “engaged in false and misleading marketing of both their drugs and opioids generally” that caused “exponentially increasing rates of addiction [and] overdose death” in Oklahoma. Findings included that: Since at least 2001, “‘a significant number of Oklahoma physicians, the health care community, law enforcement, medical advisory boards’” and others in Oklahoma were “‘being pushed and pushed and marketed [to] and misled’ about opioids” by the defendant; and the increase within the state of “opioid addiction and overdose deaths following the parallel increase in opioid sales was not a coincidence” but was “‘causally linked.’”

Citing Epps v. Ellison (82 Okla. 224 (Okla. 1921)), the judge found that J&J’s deceptive marketing about the risks and benefits of opioids “qualifies as the kind of act or omission capable of sustaining liability under Oklahoma’s nuisance law,” which defines a public nuisance as “any act which annoys, injures, or endangers the comfort, repose, health, or safety of others.” He ruled that J&J must pay $572 million to abate the nuisance; the amount is well short of the $17 billion Oklahoma sought but equal to the estimated cost of a year’s worth of drug treatment services across the state. J&J plans to appeal.

Oklahoma City attorney Larry Tawwater, who followed the litigation closely, believes that the ruling may serve as a point of reference for related, pending cases. “Oklahoma’s use of the public nuisance theory was an important aspect of this case. When you have a trier of fact conclude that the defendant committed false or misleading marketing and that compelling evidence supported the plaintiff’s public nuisance theory, then that has an influence on other cases involving similar theories. Those claims now have additional credibility.”

In a statement on the decision, colead counsel for the plaintiffs’ steering committee in the opioid MDL, which involves public nuisance claims and names J&J as a defendant, said that: “The ruling in favor of the state of Oklahoma’s public nuisance claims confirms what communities have been saying for some time: The opioid epidemic significantly interfered with public health. While public nuisance laws differ in every state, this decision is a critical step forward for the more than 2,000 cities, counties, and towns we represent in the consolidation of federal opioid cases.”

Although a bellwether trial in the MDL is scheduled to begin in October, the parties remain in flux. The Ohio attorney general—supported by several other states, the District of Columbia, and the U.S. Chamber of Commerce—has asked the Sixth Circuit to block the trial, arguing that local government claims are included improperly. And on Sept. 11, parties announced that a tentative multi-billion-dollar settlement had been reached with defendant Purdue Pharma. Settlement terms are being finalized, and attorneys general for some states have announced that they will not sign onto the deal.

Separate cases also are continuing nationwide. For example, the Tennessee Court of Appeals recently revived a lawsuit against opioid makers, ruling that the state’s Drug Dealer Liability Act applies to corporate entities alleged to have “knowingly participate[d]” in the illegal diversion of drugs. (Effler v. Purdue Pharma, 2019 WL 4303050 (Tenn. Ct. App. Sept. 11, 2019).)