Johnson & Johnson’s legal woes multiplied today. On Tuesday, the drug maker failed in its bid to have the Oklahoma opioid case tossed. That setback was followed Friday by a report that the government is pursuing a criminal probe into the firm’s talcum baby powder.
The opioid trial against the manufacturer, which began May 28 in Norman, Okla., is expected to continue until it’s eventually decided by the judge – but not before the drug maker endures several more weeks of litigation and scrutiny of its marketing practices. Alternatively, the company could settle with the state, as Purdue and Teva did for $270 million and $85 million, respectively, earlier this year.
Legal experts say they weren’t surprised by Cleveland County district judge Thad Balkman’s refusal of the drug maker’s bid to end the opioid trial, via a motion for directed verdict. The state is leveraging a novel strategy, claiming J&J created a “public nuisance” that cost the state of Oklahoma billions of dollars.
Prior to the start of litigation, the Oklahoma attorney general voluntarily dismissed everything but the public-nuisance claim. That’s despite the fact that it seemed to require more legal gymnastics than some of the other claims, especially those involving false marketing. The nuisance strategy is usually reserved for real-estate disputes, but not product liability cases.
“The problem with this case is it is really about fraudulent marketing…but the state is trying to squeeze it into a public nuisance box because ‘public nuisance’ sounds worse to members of the public,” Richard Ausness, a law professor at the University of Kentucky who’s tracking the opioid litigation, explained via email.
Before Oklahoma’s arguments wrapped up last week, the state had called some 28 witnesses, ranging from physician key opinion leaders in the pain area to former J&J sales reps. It even called up the CEO of a local ad agency to testify.
The state argued that J&J created the nuisance by flooding the market with drugs (two of the company’s formerly owned overseas subsidiaries grew poppies that went on to supply what the AG claims was 60% of all active ingredients for opioids produced and sold in the U.S.). Then, it claimed, the drug maker exacerbated it by improperly promoting opioids Duragesic and Nucynta ER as safe for everyday pain and having a low risk of addiction, through campaigns both branded and non-, as well as through government lobbying and by funding CME, advocacy groups and medical research.
Now Oklahoma wants the firm to foot the bill for a $17 billion abatement plan. “After five months of testimony, we have shown why we believe that [J&J] is the kingpin behind the opioid crisis…in our state,” AG Mike Hunter said in a statement.
In its motion filed last week, J&J refuted the product-based nuisance claim as “a crude instrument to regulate the nationwide sale of highly regulated products” and a “contrived connection.” Additionally, its lawyers called the state’s assertions about Janssen’s marketing an “assault” on the First Amendment, citing the Sorrell v. IMS case as precedent that such protections extend to pharmaceutical marketing.
In addition, since Janssen’s long-acting opioids were FDA-approved to treat chronic non-cancer pain, J&J argued, the state can’t ban the pharma company from informing doctors of those lawful uses. Likewise, both of the J&J subsidiaries that produced raw materials were DEA-approved facilities.
The defense attorneys, in their brief, labeled the state’s claims “illogical, legally defective theories,” and asserted that its client has been made a “scapegoat.”
It’s not just the Oklahoma case where opioid marketing, and to a lesser extent drug distribution, are the main issues. J&J, Endo, Teva and other opioid makers and distributors face about 1,900 lawsuits by states, counties and individuals in which the drug makers are accused of misrepresenting risks and benefits of opioids.
Meanwhile, separate from the Oklahoma trial, Bloomberg reported today that the Department of Justice is pursuing a criminal probe into whether J&J lied about possible cancer risks in its talcum baby powder. The investigation follows a slew of talc-related lawsuits filed against the company, two of which recently resulted in multimillion-dollar plaintiff awards.
“J&J has been fighting a two-front war on these issues for several years,” noted Ausness. “I could see that they might want to resolve the Oklahoma case one way or another so they can concentrate on the much more important talc case.”