The state of Oklahoma is poised to go to trial Tuesday against a drugmaker it blames for contributing to the nation’s opioid crisis. The state’s lawsuit, the first of its kind to go to trial, could stand as a test case for hundreds more.
The trial against consumer products giant Johnson & Johnson and some of its subsidiaries could bring to light documents and testimony that show what companies knew, when they knew it and how they responded. The judge is allowing cameras into the courtroom.
There will be no jury. Cleveland County District Judge Thad Balkman, a former Republican state legislator, will decide the case.
The outcome could shape negotiations on how to resolve the roughly 1,500 opioid lawsuits filed by state, local and tribal governments that have been consolidated before a federal judge in Ohio. The Oklahoma case could also guide how other firms and states hone their own strategies.
The lawsuit initially listed 13 companies as defendants, but pre-trial settlements have whittled that down .
The state settled this year with OxyContin-maker Purdue Pharma for $270 million. And on Sunday, Israeli-owned Teva Pharmaceuticals agreed to a settlement in which it will pay the state $85 million. Teva did not admit any wrongdoing under the settlement.
Now just Janssen Pharmaceutical Companies of Johnson & Johnson, which produced opioid drugs including Nucynta and the fentanyl patch Duragesic, is left in the lawsuit.
Oklahoma alleges that the drugmakers helped create a public health crisis in the state by extensively marketing highly addictive opioids for years in a way that overstated their effectiveness and underplayed the risk of addiction.
“The damage defendants’ false and deceptive marketing campaigns caused to the state of Oklahoma is catastrophic,” the lawsuit states. “As a result of the defendants’ egregious conduct, the state of Oklahoma paid, and continues to pay, millions of dollars for health care costs that stem from prescription opioid dependency.”
The companies maintain that they are part of a lawful and heavily regulated industry that is subject to strict federal oversight, and that doctors are the ones who prescribe the drugs. Much of the opioid crisis, they argue, is the result of illegal activity, such as drugs being stolen or fraudulently obtained.
Both sides have been wrangling for two years over many pretrial issues in the complicated case, and although a settlement is still possible, the state and Johnson & Johnson both say they are ready for trial.
Because many of the documents in the case involve trade secrets or marketing strategies and have been filed under seal, experts say much of the litigation so far has been marked by secrecy.
“Lots of documents have been redacted, sealed or exchanged pursuant to confidentiality agreements,” said Stanford Law School professor Nora Freeman Engstrom, an expert in tort law and legal ethics who has been closely following the case.
“The court will pull back the curtain. It’ll provide one of the first opportunities to see what started, and what fueled, this public health crisis.”
The federal judge in Ohio overseeing the hundreds of other cases has been pushing for the industry and governments to reach a global settlement to make a dent in the opioid crisis.
But some family members of those who have died from overdoses say they don’t want the cases settled and would rather see the companies’ role in the crisis revealed in a trial.
Opioids, including prescription drugs and illicit ones such as heroin, were factors in nearly 48,000 deaths in the U.S. in 2017, according to the U.S. Centers for Disease Control and Prevention. That was more deaths than the number of people killed in automobile crashes.