NORMAN — Who is to blame?
That’s the question at the heart of the state of Oklahoma’s civil lawsuit against Johnson & Johnson and its subsidiary, Janssen. The two sides made opening statements Tuesday in a trial held in Cleveland County District Judge Thad Balkman’s downtown Norman courtroom.
State Attorney General Mike Hunter and his team assert Johnson & Johnson contributed to a public nuisance in Oklahoma and the company should pay to fix or “abate” that nuisance. That abatement could cost up to $17.5 billion over the next 30 years and, under Oklahoma statutes, Hunter’s team believes J&J should pay the whole tab. Two other groups of companies named in the lawsuit, Purdue Pharma (the maker of OxyContin) and Teva Pharmaceuticals, have settled with the state for a combined $355 million.
Attorneys for J&J said the company only made two opioid products — both designed to reduce the likelihood of abuse or diversion — that made up a tiny market share of opioids sold in Oklahoma over the past several decades, and that the opioids were regulated and approved at the state and federal level.
• The state’s opening statement: Hunter said more than 4,500 Oklahomans died in the opioid epidemic from 2007-2017 and thousands more are battling addiction, calling the epidemic the “largest manmade health crisis” in the state.
“How did this happen? Greed,” he said.
Attorney Brad Beckworth said the opioid crisis began in the mid-’90s as opioid manufacturers began developing and marketing their products as drugs to solve chronic pain: drugs to start treatment with, and for patients to stay on long-term. These companies then used “deceptive marketing” and “aggressive sales techniques” to influence people in every step of the prescription process to flood the market with opioids, Beckworth asserted.
“When you oversupply, people die,” Beckworth said. Attorney Reggie Whitten said tens of thousands of Oklahomans are dealing with opioid addiction, and thousands have died.
“There is a tsunami wave of pain and misery people have to live with [due to the opioid crisis],” he said. “Addiction is a disease, and you can’t fix this problem if society feels it is just bad people doing bad things.”
• The defense opening statement: Attorney Larry Ottaway said J&J produced medically necessary medications approved and regulated by the federal government that were lawfully marketed, prescribed and dispersed and, in cases of opioids prescribed to individuals on the state’s Medicare program, were reimbursed by the state.
“The state will present zero documented cases of addiction or death due to doctors prescribing Janssen products,” Ottaway said.
Roughly 50 million Americans struggle with chronic pain, Ottaway said, and both the FDA and CDC have advocated for there to be a balance between ensuring patients with legitimate needs have access to opioids while mitigating the risk of addiction, misuse and diversion.
Ottaway also disagreed with the state’s use of Oklahoma public nuisance law as the basis for its claim, noting a hundred years of precedent demonstrate public nuisance claims almost always involve property.
“Nuisance just doesn’t apply here,” he said.
• First witness: The state’s first witness was Julio Rojas, a psychologist at the University of Oklahoma’s Health Sciences Center in Oklahoma City. Rojas testified that opioids are highly addictive and walked the court through the impact of opioid use on individuals at a higher risk for opioid addiction.
Rojas said that due to the social stigma surrounding opioid abuse, addicts rarely seek treatment, in his experience. He said opioid addiction is a chronic illness that requires at least 90 days in a residential treatment facility and a lifestyle change.
Wednesday, the state was expected to call Craig Box as a witness. Box’s son, Austin, was a former University of Oklahoma student and football player who, when he died in 2011, had five opioids present in his system. The trial is expected to take six to eight weeks, although the last-second Teva Pharmaceuticals settlement, announced Sunday, may reduce that timeline, Hunter said.