In a decision that likely will have far-reaching impact throughout the country and on New Brunswick-based Johnson & Johnson, an Oklahoma judge ruled the company was responsible for helping to fuel the opioid epidemic in that state, fining the global health care company $572 million.
The award was far lower than the more than $17 billion the state of Oklahoma was seeking, but that is not as important as the precedent the ruling could have on Johnson & Johnson and other drug manufactures throughout the country and the world.
There are thousands of potential cases throughout the country, many of which are being consolidated into larger cases. Some feel the case could be headed toward a huge settlement, such as the one tobacco companies agreed to decades ago.
Despite the verdict, Johnson & Johnson’s stock price rose more than 2% in post-market trading because the fine was so much lower than what it could have been.
Oklahoma District Judge Thad Balkman said the state met its burden that Johnson & Johnson and its subsidiary, Janssen, used misleading marketing of its opioid painkillers, Duragesic and Nucynta, to create a “public nuisance.”
Johnson & Johnson attorney Sabrina Strong issued a strong rebuke of the ruling and noted that the company intends to appeal. She suggested those appeals ultimately could go to the U.S. Supreme Court.
Perhaps top on her list of complaints on the ruling starts with the use of the public nuisance statute to try the case, she said.
“Today’s decision reflects a radical departure from more than a century of case law in this state for a hundred years, public nuisance law has been limited to property disputes where one misuses their property and causes harm to another,” Strong said. “That is not what this case is about.
“No Oklahoma court has ever done what this court has done today in applying public nuisance law to any commercial activity, let alone the highly regulated area of prescription medicines. The decision violates well established constitutional principles, including due process of law, and at bottom the decision is fundamentally unfair and that it finds Johnson and Johnson responsible for the entirety of the opioid abuse crisis and the greater drug problems in this state while there was no evidence at trial to support that finding.
“We will be preparing our appellate papers properly and we look forward to presenting these issues to the Oklahoma Supreme Court.”
Strong said Johnson & Johnson followed all federal guidelines.
“The facts are that the company manufactured to FDA approved medicines that are essential for treating patients who suffer from chronic long-term debilitating pain and the evidence at trial showed that the company manufactured and marketed those medicines in the clients with strict regulations by the FDA and the DEA,” she said.
“The evidence to trial also showed that the company’s medicines were rarely diverted, rarely abused and they amounted to less than 1% of all opioid prescriptions prescribed to patients in Oklahoma.
“That’s true throughout the country as well and at trial you will remember there was not a single Oklahoma patient or family member who testified about abuse or misuse of any Johnson & Johnson medicine and you’ll remember that the state never called a single doctor, a single Oklahoma doctor to testify that they were misled by anything that the company said or did.”
Strong said opioid abuse is a serious problem that cannot be fixed in court.
“The nation’s opioid abuse crisis is a serious public health issue,” she said. “Nobody disputes that, but you can’t sue your way out of the opioid abuse crisis.
“This is a problem that faces the country that must be addressed by public and private partnerships by all state stakeholders. Everyone wants to come together to address this. Litigation is not the answer. And as we saw at trial, Johnson & Johnson did not cause the opioid abuse crisis.
“The crisis, although it includes some diversion of prescription medications, it’s largely driven by illegally manufactured drugs that are coming into the country from Mexico and elsewhere. These are problems that need to be dressed outside of the litigation context.”
Neither company, however, admitted wrongdoing.
Strong promised Johnson & Johnson would continue to fight in court.
“When you’re right, you fight,” she said.