On The Case

J&J makes last, best case to head off Oklahoma opioids trial

(Reuters) - The state of Oklahoma is scheduled to go to trial at the end of May with claims that Johnson & Johnson and Teva are responsible for sparking a crisis of opioid abuse that, according to Oklahoma, will cost $10 billion to address. The trial, in which Oklahoma AG Mike Hunter will assert the single theory that deceptive opioid marketing created a public nuisance of drug abuse, will be heard by Oklahoma state court judge Thad Balkman rather than a jury. The trial will be the first courtroom test of pharmaceutical companies’ liability for widespread abuse of opiates – a crisis that could cost hundreds of billions of dollars to abate nationwide.

In a final attempt to end the litigation before trial, Johnson & Johnson and its subsidiaries filed a motion for summary judgment on Wednesday. (The Teva defendants, which deny Oklahoma’s allegations, also moved for summary judgment but their motion is not publicly available and a company representative did not respond to my request for a redacted version of Teva’s brief.)

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As I’ll explain, J&J and its lawyers from Odom Sparks & Jones and O’Melveny & Myers lay out their case for why Oklahoma’s nuisance theory is a contortion of state law and a violation of due process. They also say the state and its outside counsel from Nix Patterson and Whitten Burrage have not even linked J&J’s marketing of its government-approved products to unwarranted prescriptions for painkillers, let alone to abuse of illegal opiates.

They are cogent, forceful legal arguments. But the opioid litigation, like the tobacco litigation of the 1990s, is affected by factors other than the merits of defendants’ legal arguments.

Politics, as I’ve written, inevitably shapes litigation brought, in many instances, by elected officials and overseen by elected judges. And the impact of opioid abuse, as U.S. District Judge Dan Polster of Cleveland wrote last December, has been profound. “The pain, death and heartache (the opioid epidemic) has wrought cannot be overstated,” Polster wrote in a decision refusing to dismiss bellwether claims in the multidistrict litigation consolidating claims by more than 1,500 city and counties governments.

Such extra-merits considerations seem to be a big reason why the Sackler family, which controls OxyContin maker Purdue Pharma is now publicly pushing for a global settlement of the more than 2,000 suits against the company and 200 cases against individual family members. Sackler lawyer Mary Jo White of Debevoise & Plimpton told me that her clients decided they’d rather spend their money addressing opioid abuse than paying lawyers. Last month, Purdue and the Sacklers became the first opioid defendants to settle claims in the Oklahoma litigation, agreeing to pay $270 million – including $75 million from members of the Sackler family – to resolve the AG’s case.

All of this is to say that I doubt Judge Balkman will grant J&J’s motion for summary judgment. I expect Oklahoma’s case to go to trial as scheduled next month. J&J representatives declined to comment on my assessment of the company’s low odds of winning on summary judgment.

But trial courts, of course, don’t have the last word on novel legal theories. Many of the citations in J&J’s brief are to appellate rulings that reined in previous attempts to use nuisance law to address social issues like gun violence, climate change and methamphetamine abuse. In that regard, J&J’s brief is a preview of arguments that opioid defendants will someday make before state and federal appeals courts if they can’t shut down the litigation at the trial level – and don’t reach global deals along the way.

J&J’s overarching legal argument contends that the state is misusing nuisance law, which Oklahoma precedent reserves for disputes over actions that affect property. “The state attempts to shoehorn a sprawling case about marketing claims, drug addiction and epidemiology into the narrow and well-defined boundaries of a tort that ‘arises where a person uses his own property in such a manner as to cause injury to the property of another,’” the J&J brief said.

Nor can Oklahoma, according to J&J, tie the company’s actions to an explosion in illegal opiate use. J&J argued that the state has offered no proof that any Oklahoma doctor was induced by J&J marketing to write an unwarranted prescription. The state has even failed, according to J&J, to introduce statistical evidence to show Oklahoma physicians were lulled by allegedly misleading marketing. “With no individualized proof, and no method of measuring any impact from (J&J’s) allegedly wrongful conduct,” the brief said, “the state is left with empty assertions that (J&J’s) allegedly misleading statements must have been a cause of the opioid epidemic. No court has ever accepted such slapdash evidence on the causal effects of drug marketing.”

As a factual matter, J&J’s brief argued, its opioid products – a fentanyl patch and two versions of a pill called Nucynta – occupied less than half of one percent of the market for prescription opioids in Oklahoma. Neither, the company said, was widely abused. (Oklahoma’s suit also cites two J&J subsidiaries that produce active ingredients for opiates but Johnson & Johnson argues that it cannot be liable for the government-regulated production of ingredients used in drugs it did not make or sell.)

J&J stopped marketing the fentanyl patch in 2007 and ceased all marketing of opioids in 2015, when it sold the Nucynta franchise. It argues in its summary judgment brief that it is absurd for Oklahoma to attempt to offload the entire cost of dealing with statewide opioid abuse over the next 30 years on a company that held a tiny market share, stopped marketing the drugs years ago and cannot be tied to a rise in unwarranted prescriptions for painkillers. Oklahoma’s theory, according to J&J, ignores the intervening links in the chain from its marketing of government-approved prescription painkillers to the rise of Mexican and Chinese drug cartels – including, J&J argued, the failure of state and federal regulators to shut down prescription opiate abuse years ago.

“As a manufacturer of highly regulated medications illegal to possess without a prescription, (J&J) is just one small part of a broader regulatory and distribution ecosystem,” the summary judgment brief said. “It relies on other participants, including government authorities, to take reasonable and necessary steps….When those entities abdicate their duties, (J&J) cannot be held liable for the resulting addiction and overdoses.”

In an email statement, Alex Gerszewski, a spokesman for the Oklahoma AG, said Johnson & Johnson’s summary judgment motion, like the company’s 23 just-filed motions to exclude state evidence, is an attempt to delay accountability.

“Oklahoma’s public nuisance law predates statehood, and it has historically been used for those rare times when a company refuses to clean up a mess it has created,” Gerszewski said. “Johnson & Johnson’s argument, incredibly, is because the Oklahoma public nuisance law has never been applied to the most profound public health crisis in our state’s history it doesn’t apply. Really? Beginning on May 28, the state will show Oklahomans and the nation just how Johnson & Johnson ... played a key role in creating the opioid crisis.”