On The Case

Government officials put opioid defendants in a squeeze over confidentiality

(Reuters) - Confidentiality battles are becoming a hallmark of the litigation by cities and states suing pharmaceutical companies for allegedly sparking the opioid crisis by falsely representing the addictiveness of their products to patients and physicians. The pharmaceutical companies that make and sell opioids, which dispute the very premise of the false marketing claims, don’t want their internal documents to become public. That’s no surprise. Corporate defendants inevitably fight – and frequently prevail – against the revelation of confidential information.

What’s unusual about the opioid litigation is who’s on the other side. In these cases across the country, with potential liability of hundreds of billions of dollars, mega-corporations aren’t facing individual personal injury victims. They’re sparring with politicians, including state Attorneys General Maura Healey of Massachusetts, Mike Hunter of Oklahoma and Governor Mike DeWine of Ohio. That’s happened before, of course, most notably in the 1990s when state AGs went after the tobacco industry. Tobacco defendants ended up settling for $250 billion without a single AG’s case going to trial. But opioid defendants are facing imminent trials. And they’re worried, based on arguments they’ve made in two cases headed for trial dates later this year, that revelations by public officials will unduly influence the juries that will decide their liability.

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The latest confidentiality flap comes in Oklahoma’s state-court case against several opioid defendants, including Johnson & Johnson. As Axios reported Tuesday, Oklahoma’s attorney general, Mike Hunter, and his outside counsel from Whitten Burrage and Nix Patterson filed a motion to unseal a trove of Johnson & Johnson documents produced in the litigation - all of the J&J evidence predating July 2016, when the company sold off the bulk of its opioids business. The state’s Feb. 26 motion, which frequently invokes President Trump’s descriptions of the devastation of opioid addiction, calls J&J a “kingpin” of the crisis, arguing that “urgent, immediate and complete exposure to the public of J&J’s primary role in creating this public health crisis has become paramount.”

“Oklahomans deserve answers,” the motion contends. “Our legislature, governor, policymakers and doctors need to know the truth about how one particular company, J&J, inserted itself into our state and sought to influence every opioid-related decision the state made or considered….Yet J&J continues to fight to keep these answers concealed. In the dark. Away from the public.”

When I asked a J&J spokesman about Oklahoma’s unsealing motion, he pointed me to the response brief filed last week by the company and its outside counsel from O’Melveny & Myers. The company argued that Oklahoma’s unsealing request contradicts previous rulings from the county judge overseeing the state’s case, Thad Balkman. Judge Balkman has already approved protective orders for J&J documents that contain the sort of business information Oklahoma is now pressing to disclose. He has also rejected Oklahoma’s contention that J&J can’t shield documents because it sold off its opioid division, one of the key arguments in the state’s new unsealing brief.

In its response, J&J claimed that Oklahoma’s lawyers had an ulterior motive for filing their request to unseal the pharma company’s document: “Although the state purports to carry the banner of the president of the United States and the Oklahoma legislature, its not-so-concealed goal in bringing this motion is to batter Oklahomans with sensationalistic headlines and to poison potential jurors against Janssen in advance of trial.”

A spokesman for the Oklahoma AG did not immediately respond to an email requesting comment on J&J’s brief. Representatives for Massachusetts AG Healey and Ohio governor DeWine did not immediately answer queries on how statements by elected officials impact jury pools.

That same jury-influence argument was advanced by Endo, Purdue and other pharmaceutical defendants in the nationwide opioid MDL in federal court in Cleveland. As you may recall, earlier this year, after Ohio’s then AG (and now governor) Mike DeWine appeared in a "60 Minutes" segment about the opioid litigation, defendants asked the judge overseeing the MDL, U.S. District Judge Dan Polster, to issue a gag order precluding lawyers on the other side from speaking to news outlets about crucial evidence from the case. DeWine and the other plaintiffs' lawyers who appeared with him in the "60 Minutes" story, according to defendants, were using confidential information to whip up public rage. Judge Polster said at a hearing in January that plaintiffs' lawyers had come close to the line of improper disclosure but declined to issue a gag order.

You may well believe the conduct of pharmaceutical companies that developed and marketed prescription opioids is of such paramount public interest that defendants can’t hope to rely on blanket assertions of a business interest in protecting internal documents. That was the view of a Massachusetts Superior Court judge who, in January, ordered the release of the Massachusetts AG’s unredacted complaint against Purdue Pharma, despite the company’s arguments that the complaint disclosed confidential corporate information.

I’m generally skeptical, as I’ve written many times, of overly generous protective orders but I’m not highlighting these disputes in the opioid litigation to make that point. Instead, I’m interested in the unusual balance of power in these confidentiality fights in the opioid cases. Usually, corporate defendants are facing individual plaintiffs whose primary interest is in their own eventual settlement. Sure, some plaintiffs’ lawyers push back against confidentiality agreements. Most don’t.

But in the opioid litigation, as I mentioned above, many of the plaintiffs are politicians. They have different motivations than ordinary personal injury litigants. AGs who attack opioid defendants, as the Oklahoma and Ohio AGs have in public statements, can say they’re fighting on behalf of the people who put them in office. When they file a document in court – whether it’s an amended complaint based on internal documents, as in the Massachusetts case, or an unsealing motion filled with insinuations about what those internal documents might reveal, as in Oklahoma’s brief – their audience isn’t just a judge or even an eventual jury. It’s an electorate.

For opioid defendants anticipating trial dates – May 28 in Oklahoma, next fall for bellwether Ohio cases in the nationwide MDL – that is not a reassuring dynamic. Juries will be drawn from a pool of voters who elected politicians like Ohio governor DeWine and Oklahoma AG Hunter. When those public officials are telling future jurors that you’re hiding dire secrets, is there any good way for defendants to respond?