Oklahoma鈥檚 鈥楶recedent-Setting鈥� Suit Puts Opioid Drugmakers On Trial
All eyes will be on Oklahoma this week when the first case in a flood of litigation against opioid drug manufacturers begins Tuesday.
Oklahoma Attorney General Mike Hunter鈥檚 suit alleges Johnson & Johnson, the nation鈥檚 largest drugmaker, helped ignite a public health crisis that has killed thousands of state residents.
With just two days to go before the trial, one of the remaining defendants, Teva Pharmaceutical Industries of Jerusalem, announced an with the state on Sunday. The money will be used for litigation costs and an undisclosed amount will be allocated 鈥渢o abate the opioid crisis in Oklahoma,鈥� according to a press release from Hunter鈥檚 office.
In its own聽, Teva said the settlement does not establish any wrongdoing on the part of the company, adding Teva 鈥渉as not contributed to the abuse of opioids in Oklahoma in any way.鈥�
That leaves Johnson & Johnson as the sole defendant.
Court filings accuse the company of overstating the benefits of opioids and understating their risks in marketing campaigns that duped doctors into prescribing the drugs for ailments not approved by regulators.
The bench trial 鈥� with a judge and no jury 鈥� is poised to be the first of its kind to play out in court.
, a professor at Stanford Law school, said lawyers in the other cases and the general public are eager to see what proof Hunter鈥檚 office offers the court.
鈥淲e鈥檒l all be seeing what evidence is available, what evidence isn鈥檛 available and just how convincing that evidence is,鈥� she said.
Most states and more than 1,600 local and tribal governments are suing drugmakers and distributors. They are trying to recoup billions of dollars spent on addressing the fallout tied to opioid addiction.
Initially, Hunter鈥檚 lawsuit included Purdue Pharma, the maker of OxyContin. In March,听聽with the state for $270 million. Soon after,听, including fraud, against the remaining defendants. Teva settled for $85 million in May, leaving Johnson & Johnson as the only opioid manufacturer willing to go to trial with the state.
But he still thinks the case is strong.
鈥淲e have looked at literally millions of documents, taken hundreds of depositions, and we are even more convinced that these companies are the proximate cause for the epidemic in our state and in our country,鈥� Hunter said.
Precedent-Setting Case
The companies involved have a broad concern about what their liability might be, said University of Kentucky law professor Richard Ausness.
鈥淭his case will set a precedent,鈥� he said. 鈥淚f Oklahoma loses, of course they鈥檒l appeal if they lose, but the defendants may have to reconsider their strategy.鈥�
With hundreds of similar cases pending 鈥� especially a mammoth case pending in Ohio 鈥� Oklahoma鈥檚 strategy will be closely watched.
鈥淎nd of course lurking in the background is the multi-state litigation in Cleveland, where there will ultimately be a settlement in all likelihood, but the size of the settlement and the terms of the settlement may be influenced by Oklahoma,鈥� Ausness said.
鈥楾here鈥檚 Nothing Wrong with Producing Opioids鈥�
The legal case is complicated. Unlike tobacco, where , Ausness pointed out that opioids serve a medical purpose.
鈥淭here鈥檚 nothing wrong with producing opioids. It鈥檚 regulated and approved by the Federal Drug Administration, the sale is overseen by the Drug Enforcement Administration, so there鈥檚 a great deal of regulation in the production and distribution and sale of opioid products,鈥� Ausness said. 鈥淭hey are useful products, so this is not a situation where the product is defective in some way.鈥�
It鈥檚 an argument that has found some traction in court. Recently, a North Dakota judge dismissed all of that state鈥檚 claims against Purdue, a big court win for the company. In a written ruling that the state says it will appeal, Judge James Hill questioned the idea of blaming a company that makes a legal product for opioid-related deaths. 鈥淧urdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products,鈥� the judge wrote, 鈥渞egardless of any warning or instruction Purdue may give.鈥�
Now the Oklahoma case rests entirely on a claim of public nuisance, which refers to actions that harm members of the public, including injury to public health.
鈥淚t鈥檚 sexy you know, 鈥榩ublic nuisance鈥� makes it sound like the defendants are really bad,鈥� Ausness said.
If the state鈥檚 claim prevails, Big Pharma could be forced to spend billions of dollars in Oklahoma helping ease the epidemic. 鈥淚t doesn鈥檛 diminish the amount of damages we believe we鈥檒l be able to justify to the judge,鈥� Hunter said, estimating a final payout could run into the 鈥渂illions of dollars.鈥�
Hunter鈥檚 decision to go it alone and not join with a larger consolidated case could mean a quicker resolution for the state, Ausness said.
鈥淧articularly when we鈥檙e talking about [attorneys general], who are politicians, who want to be able to tell the people, 鈥楪ee this is what I鈥檝e done for you.鈥� They are not interested in waiting two or three years [for a settlement], they want it now,鈥� he said. 鈥淥f course, the risk of that is you may lose.鈥�
Looking For Treatment
Oklahoma has the second-highest uninsured rate in the nation and little money for public health. The state is trying to win money from the drug companies to pay for treatment for people like Greg, who is afraid he鈥檒l lose his job if we use his last name.
Greg and his wife, Judy, said they haven鈥檛 been able to find the integrated treatment that Greg needs for both his opioid addiction and his bipolar disorder. It鈥檚 either one or the other.
鈥淭hey don鈥檛 give you 鈥� a treatment plan for both,鈥� Judy said. 鈥淭hey just say 鈥楬ere, you can talk to this person.鈥� They don鈥檛 recognize that it鈥檚 like self-medicating.鈥�
The couple live in Guthrie, Okla., about an hour north of the courthouse where the opioid trial will take place. Greg said he has been addicted to opioids for 11 years. People with prescriptions sell him their pills 鈥� sometimes Greg binges and takes 400 milligrams of morphine at once, a huge dose.
Of the $270 million Purdue settlement, $200 million is earmarked for an addiction research and treatment center in Tulsa, though no details have been released. An undisclosed amount of the $85 million Teva settlement will also go to abating the crisis. Judy said she hopes the treatment center will eventually help Greg.
鈥淚 wish he would stop using [opioids], but I love him. I鈥檒l always be here,鈥� she said.
This story is part of a partnership that includes , 聽and Kaiser Health News.