On August 26th, a district court judge in Oklahoma ruled Johnson and Johnson and its subsidiary, Janssen Pharmaceuticals, should pay $572 million. Supposedly, Johnson and Johnson created the opioid epidemic in Oklahoma, and in turn, caused a nuisance.
This will not be a legal precedent-setting outcome as Andrew S. Pollis, a law professor at Case Western Reserve University School of Law in Ohio states. He was asked about the lawsuit before the verdict. The case is based on the nuisance statue in Oklahoma and opioids make it a very unique case. Nuisance laws as discussed in a NY Times article usually look at something that interferes with the general public. This includes roads, waterways, and public areas. Generally, the Nuisance lawsuits have involved lead paint, guns, pollution of air or water and noise.
Is the Opioid Epidemic in Oklahoma a Public Nuisance?
Janssen Pharmaceuticals does produce the fentanyl pain patch worn on the skin. It supplies product to other drug companies which are imported from foreign poppy fields. It holds less than 1% of the Oklahoma market share. There was no direct evidence that anything Johnson and Johnson did was,
responsible for most of the opioid-related damage — from criminal justice to health care, foster care, and treatment facilities.
From an article in the Washington Post, Alexandra Lahav, a professor at the University of Connecticut School of Law, countered,
she is not convinced that Johnson & Johnson’s role as a supplier of raw materials to other drug companies sufficiently connects it to the opioid crisis
In May, a North Dakota district court judge dismissed a similar lawsuit against Purdue Pharma,
the state’s effort to hold one company to account for this entire, complex public health issue oversimplifies the problem…[Purdue Pharma] has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to customers
Statistics can be a Nuisance
Oklahoma, during the court case, brought data from Oklahoma unintentional opioid deaths. In 2015, Oklahoma published the results of unintentional poisoning deaths from 2007-2012. 70% had at least one prescription medication. These could be opioids, anti-anxiety, muscle relaxants or antidepressants. In over 50% of deaths involving prescription opioids, other substances drug testing revealed other substances. Oklahoma does autopsies on less than 25% of suicides and less than 50% on undetermined deaths. That means a large number of deaths which may involve drugs are missing from all data numbers. 63% of decedents had a prior prescription drug abuse history. 38% had a documented mental health problem. These are very concerning statistics when pointing the finger at one company as the sole cause of a state’s drug problem.
Are Drugmakers tricking Doctors?
Oklahoma used physician witnesses to give opinions and not many facts. Dr. Danesh Mazloomdoost, an anesthesiologist from Kentucky testified,
deceptive and aggressive marketing of opioids by companies like J&J over the past 25 years has affected the beliefs and practices of an entire generation of doctors and convinced countless patients that pain is a disease rather than a symptom and that relief from pain can only be found in higher and higher doses of opioids….even medical schools and textbooks have been “infected” by the inescapable influence of cash-rich multinational drug companies.
Dr. Mazloomdoost admitted he did not know of any physician in Oklahoma who was given false information in the state. He has never practiced in Oklahoma, never had a conference dealing with medications in Oklahoma, nor did he ever speak to an Oklahoma Janssen Pharmaceutical rep.
Dr. Russell Portenoy, another physician witness against Johnson and Johnson testified,
companies skillfully crafted a positive message about opioids and pushed it aggressively for decades
The Republican Oklahoma Attorney General calls drugmaker marketing a,
“cynical, deceitful, multimillion-dollar brainwashing campaign”
Opioid Epidemic is Tobacco 2.0
In 2017, the Wall Street Journal discussed the opportunity for private lawyers to become part of government litigation. If they lose, they get nothing, but as happened with the tobacco cases of the 1990s, if you win, you win big. Even back in 2017, Mike Moore, the attorney who started the Tobacco suits that ended up with a $246 billion settlement, started consulting on opioid lawsuits.
Many independent groups have done wonderful articles reporting on all the waste and poor outcomes of the anti-tobacco efforts in all the states that received a portion of that settlement. Patrick Basham, writing for Cato about the Tobacco settlements, said it very well,
…most anti-tobacco groups spent the last 25 years operating on the erroneous assumption that if you could prevent the tobacco industry from marketing, you could stop people from smoking. Most tobacco control efforts have failed because they have not been linked to the right predictors of becoming a smoker. These include socioeconomic status, connection, and success at school, self-esteem, family structure and relations with parents.
Oklahoma still has an Opioid Nuisance
As per the Washington Post,
“The opioid crisis has ravaged the state of Oklahoma and must be abated immediately,” [Judge Thad] Balkman said, reading part of his decision aloud from the bench Monday afternoon.
But the judge concluded it would cost $572 million to address the crisis in the first year based on the state’s plan. He said the state did not provide “sufficient evidence” of the time and money needed to respond after that.
Judge Balkman went through as many government departments as he could think of including the licensing boards including Nursing, Dentistry, and Veterinary. All of these would need money to stop the opioid epidemic in Oklahoma. But how will one year’s worth of money “abate” the crisis immediately when not one of these government entities has any plan?
Purdue and Teva Pharmaceutical settled prior with Oklahoma for $270 million and $85 million respectively. $60 million went to private lawyers and $200 million went to a research project at Oklahoma State University.
Oklahoma is only the beginning
The courts now have over 2000 lawsuits related to opioids. The American Medical Association even created a policy this year for the money, expecting a windfall. Monies should “be used exclusively for research, education, prevention, and treatment of overdose, opioid-use disorder, and pain”.
Purdue Pharma, a maker of Oxycontin, is seeing the writing on the wall with the Oklahoma verdict. It may be beginning to propose a large settlement of $10-12 billion as reported by the AP.
I discussed the opioid problem pointing to the FDA and private consumer groups as a cause in a 71 Republic article. To believe Oklahoma, medical students, who are at the top of their college classes and have medical school pharmaceutical and medication classes, blindly followed some sort of marketing scheme. They are tricking certified and educated physicians. These lawsuits are no cure for the opioid crisis. Just government being a nuisance.
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