Lawyers for Teva and for Johnson & Johnson’s pharma subsidiary showed their legal hands yesterday, indicating how they plan to defend themselves in a landmark opioid trial being brought by two Ohio counties. And in J&J’s case, that strategy looks a lot like the one employed in an earlier Oklahoma trial, which the drug maker ultimately lost.

In trial briefs filed Wednesday, the two counties, Cuyahoga and Summit, charged the companies with creating a “public nuisance” that harmed the health of residents. They plan to show that the opioid epidemic “constitutes an unreasonable interference with public health, public safety, public peace or public comfort,” and that culpability lies squarely with the pharma industry. The counties are seeking billions in redress, which will cover such services as addiction treatment, emergency services and care. 

Company lawyers for J&J unit Janssen Pharmaceuticals argued that its medications, which include Duragesic and Nucynta, “did not cause or contribute” to the ongoing opioid epidemic, and that its drugs “had among the lowest rates of abuse and diversion of any Schedule II prescription opioid on the market. Nor can plaintiffs blame the crisis on Janssen’s marketing.”

Furthermore, the two opioid products made up less than 1% of the prescription opioid market in the two counties, its attorneys noted. And the abuse potential of its Duragesic fentanyl skin patch is much lower than pills. 

Teva’s lawyers, meanwhile, asserted that the counties will be hard-pressed to establish a causal link between drug sales by the company and harm to their residents. “At trial, the counties will not be able to present testimony showing a single false statement that any Teva or Actavis generic defendant made to a single prescriber in the counties; a single county doctor who was misled by anything that they said or did; or a single patient who was harmed because of a false stat.” 

According to one legal expert, those arguments are not new but are reminiscent of J&J’s defense in the earlier Oklahoma trial, the first of a wave of cases from local governments to go to trial to pin blame for the opioid crisis on the back of pharma companies—and a case which J&J ultimately lost in a $572 million judgment in August. Teva had settled with Oklahoma for $85 million prior to the trial, as did Purdue Pharma, for $270 million. 

Earlier this month, Purdue and its owners, members of the Sackler family, reached a tentative agreement, reportedly between $10 billion and $12 billion, to settle some of the remaining lawsuits. The deal would involve the maker of OxyContin, which is seen as having seeded the epidemic, filing for Chapter 11 bankruptcy, after which the company would be dissolved and a new one created to sell OxyContin and other medicines, with profits used to pay plaintiffs. A dozen states have so far abstained from the deal.

Cleveland District Judge Dan Aaron Polster is now consolidating the roughly 2,000 lawsuits in the “multidistrict litigation” and presiding over the Ohio case. The two counties are considered test cases for how the other plaintiffs’ cases might fare. The parties were required to file the papers by Wednesday, and the trial is set to begin in a few weeks. 

“It appears that the defendants are primarily relying on a statutory compliance argument—‘We are not liable because we complied with all the Food and Drug Administration and Drug Enforcement Administration requirements,’” explained Richard Ausness, a law professor at the University of Kentucky who’s tracking the opioid litigation, “and the argument that there is no ‘proximate cause’ between their conduct and the plaintiffs’ economic losses.”

The defendants, he noted by email, will also claim that their conduct did not cause a public nuisance because it did not involve an activity on, or harm to, real property. “J&J relied on these arguments in the Oklahoma case and got nowhere,” said Ausness. “We’ll have to see if they do better this time around. I am guessing that Judge Polster will not be impressed.”

J&J was found responsible for Oklahoma’s opioid crisis under the state’s public nuisance law in a case which emphasized the role of marketing, specifically that J&J, Purdue and Teva downplayed the risks of addiction to opioids in order to sell more drugs. In a statement issued shortly after the ruling, J&J maintained that the ruling is a “misapplication of public nuisance law,” one which has no implications for other lawsuits, and that it intends to appeal the decision.

In addition to the public nuisance claim, other charges being brought by the two Ohio counties include allegations of violating federal RICO laws, which are usually reserved for organized crime, as well as civil conspiracy and violation of Ohio’s corrupt practices law. 

Retail pharmacy chain Walgreens is also named in the suit, along with distributors McKesson, Cardinal Health, AmerisourceBergen and Henry Schein. 

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