NORMAN, Okla. — A judge on Monday found Johnson & Johnson responsible for fueling Oklahoma’s opioid crisis, ordering the healthcare company to pay $572.1 million to redress the devastating consequences suffered by the state and its residents.
Cleveland County District Judge Thad Balkman’s landmark decision is the first to hold a drugmaker culpable for the fallout of years of opioid dispensing that began in the late 1990s, sparking a nationwide epidemic of overdose deaths and addiction. More than 400,000 people have died of overdoses from painkillers, heroin and illegal fentanyl since 1999.
Balkman, who read part of his decision aloud in his courtroom Monday afternoon, said “the opioid crisis has ravaged the state of Oklahoma and must be abated immediately.”
With more than 40 states lined up to pursue similar claims against the pharmaceutical industry, the ruling in the first state case to go to trial could influence both sides’ strategies in the months and years to come. Its impact on an enormous federal lawsuit brought by nearly 2,000 cities, counties, Native American tribes and others, which is scheduled to begin in October, is less certain.
Sen. Jeanne Shaheen, D-NH, commented late Monday on the court’s decision.
“Manufacturers of prescription opioids played a significant role in creating and prolonging this health crisis in New Hampshire and across the nation,” Shaheen said. “With more than 2,000 overdose deaths in the past five years in New Hampshire alone, it’s past time there was accountability for their actions. Today’s ruling was an important first step on the road to making sure those most affected will be compensated for the devastating damages sowed by these companies’ actions,” said Shaheen. “As a senior member of the Senate Appropriations Committee, fighting for additional federal resources to assist our Granite State communities on the front lines of this epidemic will remain a top priority, and I’ll keep pushing to hold culpable pharmaceutical companies like Johnson & Johnson responsible for their actions.”
Oklahoma Attorney General Mike Hunter, a Republican, sued three major drug companies in 2017, accusing them of creating “a public nuisance” by flooding the state with opioids, while downplaying the drugs’ addictive potential and persuading physicians to use them even for minor aches and pains. Before the late 1990s, physicians reserved the powerful drugs primarily for cancer and post-surgical pain and end-of-life care.
More than 6,000 Oklahomans have died of painkiller overdoses since 2000, the state charged in court papers, as the number of opioid prescriptions dispensed by pharmacies reached 479 every hour in 2017.
Oklahoma settled with Purdue Pharma, manufacturer of OxyContin, in March, accepting $270 million from the company and its owners, the Sackler family. Most of that will go to a treatment and research center at Oklahoma State University, although the federal government is seeking a portion of the money.
In May, two days before the trial began, the state settled with Teva Pharmaceuticals, an Israeli-based manufacturer of generic drugs, for $85 million.
That left Johnson & Johnson, which has denied any wrongdoing and chose to fight the accusations in what became a seven-week trial before Balkman. There was no jury.
The company’s products — two prescription opioid pills and a fentanyl skin patch sold by subsidiary Janssen Pharmaceuticals — were a small part of the painkillers consumed in Oklahoma. But Hunter painted the company as a “kingpin” of the drug trade because two other companies it owned grew, processed and supplied most of the main ingredients in painkillers sold by most drug companies.
“At the root of this crisis was Johnson & Johnson, a company that literally created the poppy that became the source of the opioid crisis,” the state charged.
The state also said Johnson & Johnson took part in the pharmaceutical industry’s effort to change doctors’ reluctance to prescribe opioids by mounting an aggressive misinformation campaign that targeted the least knowledgeable physicians.
The company’s “marketing scheme was driven by a desire to make billions for their pain franchise,” Hunter wrote. “To do this, they developed and carried out a plan to directly influence and convince doctors to prescribe more and more opioids, despite the fact that defendants knew increasing the supply of opioids would lead to abuse, addiction, misuse, death and crime.”
The core of Johnson & Johnson’s defense was that it could not be held liable for supplying legal products and ingredients, which were highly regulated by the Food and Drug Administration, the Drug Enforcement Administration and state authorities themselves.
At trial, company lawyers sought to rebut accusations of a misinformation campaign by attributing them to third parties and contending sales calls to doctors did not lead to overprescribing, or the drug crisis.
“At the heart of the state’s case is the premise that stray promotional statements by Janssen over the course of two decades somehow caused Oklahoma’s opioid abuse crisis,” their lawyers wrote, referring to the subsidiary that supplied the opioids. “Never once, however, did the state identify a single Oklahoma doctor who was misled by a single statement Janssen made,” they said in documents filed at the conclusion of the trial.
As for its two subsidiaries that grew, refined and supplied the ingredients that went into painkillers, Johnson & Johnson lawyers said Noramco and Tasmanian Alkaloids engaged in legal commerce under DEA approval and in compliance with the federal Controlled Substances Act.
Legally, the trial centered on the state’s novel, perhaps unprecedented, attempt to say the drug company created a public nuisance in the state of Oklahoma. Historically, that law has been used against loud neighbors, brothels and polluters who used their properties in ways that harmed others. The remedy has been to force them to stop.
But in this case, Oklahoma, citing the law, said the drug company’s conduct did “annoy, injure and endanger the comfort, repose, health and safety of others,” as well as “render Oklahomans insecure in life and in the use of property.”
Hunter asked for $17.5 billion over 30 years to help pay for treatment, emergency care, law enforcement, social services and other needs that will be required long into the future to address the fallout from opioid addiction.
An Oklahoma law professor called that a novel interpretation but said it could pass legal muster. In May, a North Dakota judge threw out a similar state lawsuit against Purdue Pharma.
The drug company’s lawyers contend the state’s argument rested on “radical theories unmoored from more than a century of Oklahoma case law.” They noted that “no Oklahoma court has ever awarded a plaintiff a cash recovery” to stop a public nuisance.
Many other states, cities and counties that have sued drug companies under similar laws were watching Balkman’s decision closely.