Oklahoma ruling sets stage for more legal action over opioids
Oklahoma attorney general says Johnson & Johnson fine offers other states a ‘road map’ to hold drug makers to account.
“We did it in Oklahoma. You can do it elsewhere.” That was the message from Oklahoma Attorney General Mike Hunter after a judge fined drugmaker Johnson & Johnson more than half a billion dollars on Monday for its role in fuelling the opioid crisis in Oklahoma, a state in the south-central region of the United States.
Oklahoma’s legal strategy pivoted on the argument that Johnson & Johnson had created a “public nuisance” by launching an aggressive and misleading marketing campaign that overstated how effective its drugs were for treating chronic pain while understating the risks of addiction.
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The strategy resulted in Johnson & Johnson getting slapped with a $572m fine, and crucially, said Hunter, that offers other states what he described as a “road map” to follow for holding drugmakers responsible for the opioid crisis.
No fewer than 48 US states – plus around 2,000 local and tribal governments – have sued companies in the drug industry, arguing those that make, distribute and sell opioid drugs are partly responsible for a crisis that has killed more than 400,000 people across the country since 2000, according to the US Centers for Disease Control and Prevention. That’s including more than 47,000 deaths in both 2017 and last year.
Oklahoma’s public-nuisance lawsuit against several drugmakers and their subsidiaries – Johnson & Johnson was the only company to make it to trial after others settled out of court – was the first in the wave of opioid litigation to make it to trial.
The first federal trial, involving claims from Ohio State’s Cuyahoga and Summit counties, is scheduled for October 21. The Cleveland-based judge in that case, Dan Polster, intends to use it to set a precedent that could apply to other federal and state cases, which could be tried as soon as next year.
Hunter said opioid overdoses killed 4,653 people in Oklahoma from 2007 to 2017. Oklahoma had initially requested the pharma company be fined $17bn to cover the costs of the crisis.
That's the message to other states: We did it in Oklahoma. You can do it elsewhere. Johnson & Johnson will finally be held accountable for thousands of deaths and addictions.
Hunter called Johnson & Johnson a “kingpin” company that was motivated by greed. He specifically pointed to two former subsidiaries, Noramco and Tasmanian Alkaloids, which produced much of the raw opium used by other manufacturers to produce opioid drugs.
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Opioids are an addictive family of drugs that block pain signals between the body and brain. They include prescription painkillers such as Vicodin and OxyContin, as well as illegal drugs such as heroin and illicit versions of fentanyl.
Until recent decades, opioids were prescribed largely to treat pain in patients who had cancer, who were at the end of their lives, or who were in acute pain, such as that after surgery. Since the 1990s, there has been a push in the medical world, partly funded by the marketing departments of drug companies, to do better at treating pain – and opioids came to be seen as part of the solution.
Experts say the longer patients are on the drugs and the higher the doses they receive, the more likely they are to develop addictions. Also, more people with prescriptions means more access to the drugs for recreational users and addicts.
Before the start of Oklahoma’s six-week trial in May, the state reached a $270 million deal with Purdue Pharma, the maker of OxyContin, and an $85 million settlement with Teva Pharmaceuticals. The Purdue settlement calls for about $200 million to go into a trust to fund an addiction studies centre at Oklahoma State University in Tulsa.
In recent years, opioid overdoses have been the nation’s largest cause of accidental deaths, ahead of even car accidents. The death tolls per capita have been most severe in places with the highest prescription rates – but as prescription rates have started falling as the scale of the problem became clearer, death rates have actually risen, with more addicts using deadlier illicit versions of opioids.
Johnson & Johnson ranked 37th on the Fortune 500 list in 2018, and owns 250 subsidiary companies with products sold in more than 175 countries. It has assets worth $153bn, according to papers filed with the US Securities and Exchange Commission.