The judge overseeing the state’s opioid case against Johnson & Johnson ruled Monday the trial will go forward.
The drugmaker had asked the judge to end the trial “here and now” and rule in its favor.
Cleveland County District Judge Thad Balkman denied the defense request after listening to legal arguments Monday morning.
The judge said he had determined there is sufficient evidence of the state’s nuisance claim for the trial to proceed.
Defense attorneys filed the request Wednesday morning after the state’s final witness, a former drug sales rep, testified. Such motions made at the midpoint of civil trials are often routinely rejected with little discussion.
At the trial, the state of Oklahoma is asking the judge to hold Johnson & Johnson and its subsidiaries accountable for an opioid epidemic that has killed close to 7,000 Oklahomans. The state wants the judge to order the drugmaker to pay more than $17.5 billion to abate a public nuisance.
Johnson & Johnson contends it actually was an afterthought in a case built for much of the past two years against Purdue Pharma “and its flagship product, OxyContin.” The state settled with Purdue Pharma before trial for $270 million and with generic drugmaker Teva Pharmaceuticals USA for $85 million.
“Having compromised with the manufacturers of the drugs that fueled its crisis, the State and its contingency counsel pivoted, training their sights on a defendant they believe can satisfy an astronomical judgment,” defense attorneys told the judge in a 121-page legal filing.
In the legal filing, the attorneys argue a judgment in favor of Johnson & Johnson is warranted on both legal and factual grounds including their claim the state shares blame for the crisis.
The state asked for the trial to proceed.
“If the kind of conduct that you have seen and heard and witnessed with your own eyes over the last month and a half isn’t the kind of conduct that rises to a nuisance here in the state of Oklahoma, then we should all go lock ourselves in a very safe and secure dungeon and make sure we never come out again,” state attorney Brad Beckworth told the judge last week.
In a response Sunday, the state told the judge defense attorneys had raised nothing new in last week’s legal filing — “nothing this Court has not already rejected.”
In the legal filing and a one-page summary sent to the media, Johnson & Johnsonsharply criticized Attorney General Mike Hunter for making the public nuisance claim. “Even as the attorney general argues for a far-reaching application of public nuisance law in this case, the attorney general argues just the opposite in a climate change case in California” involving oil producers, Johnson & Johnson said in the summary.
In a statement about the criticism, Hunter told The Oklahoman it was absurd to compare the opioid epidemic to climate change.
“The opioid epidemic can be curtailed through a discernible and focused series of actions, including education, prevention, treatment and enjoining deceptive marketing practices. Climate change, on the other hand, is a hypothetical global phenomenon with countless factors and influences, such that attempted abatement via a judicial order … is totally inapplicable,” Hunter said.
In blaming Johnson & Johnson for the opioid epidemic, the state put on evidence two former subsidiaries sold the raw materials to other drugmakers.
“Johnson & Johnson created a mutant strain of poppy in 1994 that allowed it to manufacture and supply massive amounts of opioids,” Hunter said in a news release last week after the state rested its case. “For years, Johnson & Johnson supplied more than 60 percent of all active ingredients for opioids manufactured and sold in the United States.”
Johnson & Johnson told the judge, though, that the U.S. Drug Enforcement Administration carefully regulated and specifically authorized those sales.
“The theory fails because Tasmanian Alkaloids and Noramco sold their products under strict international and federal regulatory systems that state tort law cannot second-guess,” defense attorneys wrote in the legal filing.
More defense witnesses will testify this week. Six have testified so far. Testimony could wrap up this week or early next week. The judge will then hear closing arguments and announce the verdict in August.
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