Opioid abuse and addiction continue to ravage communities across the
United States. Nora Freeman Engstrom of Stanford Law School reported in
Suing the Opioid Companies,
on August 30, 2018, that 2.4 million Americans had an opioid-use
disorder with 300,000 lives lost, including 42,000 in 2016 alone. The
financial burden on state governments in the form of increases in the
cost for public health services, law enforcement, medical treatment,
rehabilitation programs, housing, and related services has left state
governments seeking the funds required to adequately deal with this
crisis. Oklahoma was the first state to file suit against opioid
manufacturers. The success of their legal strategy will have a
significant impact on the opioid–and pharmaceutical–industry going
forward.
What Oklahoma claimed
In the Judgement After Non-Jury Trial for the State of Oklahoma vs.
Multiple Pharmaceutical Defendants in the District Court of Cleveland
County during the spring/summer of 2019, the document shows that the
state of Oklahoma claimed the defendants caused a public nuisance, for
which the state was seeking relief in the form of “abatement of the
nuisance.” None of the parties disputed the fact that Oklahoma was
suffering a crisis related to the use of opioid drugs. They also agreed
on several other indicators of the extent of this crisis, including the
fact that in 2015, enough opioid pills were dispensed in Oklahoma “for
every adult to have 110 pills.”
In his ruling, Judge Thad Balkman wrote that the challenged conduct
was the “Defendants’ “misleading marketing and promotion of opioids. …
Defendants engaged in a false, misleading, and deceptive marketing
campaign designed to convince Oklahoma doctors, patients, and the public
at large that opioids were safe and effective for the long-term
treatment of chronic, non-malignant pain. The greater weight of the
evidence shows that Defendants did, in fact, engage in such false and
misleading marketing and the law is clear that such conduct qualifies as
the kind of act or omission capable of sustaining liability under
Oklahoma’s nuisance law.”
The action by the state of Oklahoma was successful where the suits of
individuals and class action had not been because the individual and
class action suits dealt with the specifics of an individual or group.
Since the medications in question were FDA-approved and the individuals
had chosen to take the medication, it was difficult to prevail. With
class action suits, it was extremely difficult to assemble a group that
had enough of the essential traits in common for the suit to succeed. By
using the fact that the opioid addiction situation in Oklahoma was a
crisis that had created a public nuisance, delving into the private
lives of specific individuals was not required.
Ultimately,
the court agreed that the defendants had caused a nuisance as defined
to consist “in unlawfully doing an act, omitting to perform a duty,
which act or omission annoys, injures or endangers the comfort, repose,
health or safety of others; or, in any way renders other persons
insecure in life, or in the use of property…” Judge Balkman ordered
Johnson & Johnson to pay $572 million – an amount significantly less
than sought, but one The New York Times reported would pay for a year’s
worth of the services needed to combat the epidemic in Oklahoma. Purdue
Pharma settled for $270 million in this same suit, one of the many in
which it was named as a defendant.
Purdue Pharma, together with members of the Sackler family that own
the company, is the name in a large opioid settlement relating to a
lawsuit. Filed in December 2018 by Connecticut and a number of other
states, it alleges that the company continued to push patients toward
OxyContin
® even after the addiction rate became evident.
Connecticut Attorney General William Tong told ABC News in April 2019,
“Our investigation left no room for doubt—Purdue and the Sacklers
ignored all human cost while pushing deadly opioids in blind pursuit of
profit.”
In a September 9
th interview on NPR with North Carolina
Attorney General Josh Stein, host Brian Mann – who covers opioid
litigation for NPR – explained that “there’s a legal argument being made
by some of these states [still seeking abatement] that the Sacklers
effectively stripped billions of dollars out of Purdue Pharma over the
years. In part, it’s alleged, because the family suspected their company
would eventually face lawsuits like this. So, 17 states are already
suing the Sacklers Directly to try to claw back some of these profits.”
Stein agreed, stating “many states, like mine, will be filing lawsuits
against the Sacklers in their individual capacity in creating this
epidemic. I think almost more than any other family and company, they
have to wear that burden.” On September 15, Purdue Pharma filed for
bankruptcy in Chapter 11 as part of their $3 billion settlement of the
2018 suit. Whether or not future litigation directly against family
members will succeed remains to be seen.
What it Means for Pharma
In the opinion of Stanford legal experts Michelle Mello and Nora
Freeman Engstrom in an August paper, the outcome of the case was not a
foregone conclusion. Nuisance claims are very hard to prove and by the
time the suit went to court, “Oklahoma’s various causes of action got
winnowed down to the singular claim that J&H had created a public
nuisance by aggressively and deceptively marketing opioid products to
Oklahoma’s doctors and patients.” As the first case of its kind, the
Oklahoma case is a bellwether case – it leads the way to future
litigation.
“The verdict,” say the authors, “suggests that this litigation has
legs, and that judges and juries may be willing to pin blame not just on
Purdue, the maker of OxyContin
®, but on others who played an
arguably less central role in fueling this public health crisis.” This
has to be a concern to pharma companies and others in the industry
alike. The fact that FDA-approved opioid drugs, marketed and sold
through widely accepted means, have been the target of successful
litigation as a public nuisance is certainly a game changer. The
potential culpability of companies in the pharma space has undergone a
paradigm shift.
Mello and Engstrom summed it up well. “What is striking is how
damming Judge Balkman’s factual conclusions about J&J’s conduct are,
and how similar they are to the allegations made against other opioid
manufacturers in other cases. All the things he objected to regarding
J&J’s marketing practices are things that others, too, allegedly
have done. Some of them are things that multiple companies banded
together to do. Plaintiff’s attorneys should be feeling pretty confident
about their chances of persuading other courts that those practices are
problematic.”
https://www.biospace.com/article/what-do-the-j-and-j-and-purdue-pharma-outcomes-mean-to-pharma-/
