Last week the judge in the Oklahoma opioid trial denied a motion, filed by defendant Johnson & Johnson, to dismiss the state’s case against the manufacturer. The move all but guaranteed that, barring settlement, the historic trial, which began in May, will continue into late July or early August and that the defendant will face weeks more litigation and scrutiny of its promotional practices.
That means it’s decision time: Will the drug maker compromise or let the trial go the distance and face judgment?
If it opts for the latter, things could get ugly for J&J. Its lawyers have been fighting tooth and nail to oppose Oklahoma attorney general Mike Hunter’s “public-nuisance” argument, which asserts that the manufacturer flooded the state with opioids and then marketed them overzealously, costing it billions of dollars.
The fact that J&J tried–and failed–to get the case tossed suggests that the judge isn’t buying its approach, which is to absolve the company of any and all blame.
There’s always a certain amount of posturing in a case such as this. If the state’s tone has been bold and brash in asserting that the opioid epidemic was a public nuisance, then the defense’s has been downright harsh and aggressive.
J&J’s attorneys, in their brief, labeled Oklahoma’s claims “illogical, legally defective theories,” and asserted that its client has been made a “scapegoat.”
Granted, there’s a lot at stake. Oklahoma wants the firm to pay for a $17 billion abatement plan. But the drug maker should not continue to vigorously deny having any responsibility for causing the opioid crisis. It must acknowledge it played some role.
While expressing a little remorse may be anathema to the corporate legal playbook, the fact that opioid-related deaths are ravaging the country changes the calculus, experts say.
Michael Santoro, co-editor of Ethics in the Pharmaceutical Industry and a professor of management and entrepreneurship at Santa Clara University, said he questions whether J&J is well-served by what he called “over-the-top rhetoric and posturing” by its lawyers.
“My advice to J&J is to tone down the rhetoric and seek a compromise settlement,” Santoro wrote by email. “If they continue on this path, their lack of remorse will very likely lead to a much larger judgment against them should they fail to prevail. They are doubling down when they should be approaching this with greater cooperation and sense of remorse and partial responsibility.”
What about the defense’s assertion that marketing its drugs for FDA-approved uses, as Janssen did, was perfectly legal?
Karen Tibbals, author of the book Marketing Landmines: The Next Generation of Emotional Branding, cites a set of questions, created by David Miller of Princeton University, to guide companies in making ethical decisions. She has modified them for the pharma industry as follows: Is it in our clients’ (patients’/doctors’) interests, does it create economic value and is it systemically responsible?
The answers to the first two questions depend on various factors, but it’s the last question that is crucial to determine the ethics of opioids.
“I think we would now say that it was not systemically responsible to market opioids as [drug makers] did because of the contribution to the opioid crisis,” Tibbals said.
Another reason J&J needs to settle is that, between liability cases for its opioids and talcum baby powder, the manufacturer has been fighting a two-front war. Settling in Oklahoma will enable it to focus on the more important talc cases, which have not been going the company’s way thus far. Moreover, according to a Bloomberg report on Friday, the Department of Justice is now pursuing a criminal probe into whether J&J lied about the cancer risks in its talc.
It doesn’t help that, in June J&J did away with its chief marketing officer role, formerly filled by Alison Lewis, while in the midst of these two very high-profile, product-related controversies. Both crises could have benefited from another authoritative, C-suite voice of the company (and upholder of the company’s famous Credo) in addition to CEO Alex Gorsky.
With the opioid-abuse trial dragging into its seventh week, and with the company finding itself on more treacherous footing after the judge’s refusal to toss the case, J&J would do well to shift its tone and pursue a compromise in Oklahoma. Otherwise, for J&J, judgment may be drawing nigh.