A historic Oklahoma trial that will test whether a state can make a pharmaceutical company pay for the opioid epidemic will resume Wednesday with the testimony of the father of Austin Box, a 22-year-old linebacker for the Sooners who died of an overdose.
Oklahoma Attorney General Mike Hunter in opening statements Tuesday accused drugmakers of a “cynical, deceitful, multimillion-dollar brainwashing campaign to establish opioid analgesics as the magic drug.”
The trial is expected to lay a road map for other states and municipalities in holding drugmakers accountable for what Hunter told the court was “the worst man-made public health crisis in the history of our country and the state – the prescription opioid epidemic.”
“To put it bluntly,” he said, “this crisis is devastating Oklahoma.”
Outside court, Hunter told reporters, “Our evidence is going to show clearly and irrefutably that these companies worked together and that Johnson & Johnson was in it up to their neck.”
Hunter told the court that 4,653 Oklahomans died of unintentional overdoses involving prescription opioids from 2007 to 2017, and that there were more than 28,000 admissions for opioid and heroin treatment through state services from 2012 to 2018.
Oklahoma ranked seventh in the nation for prescription pain reliever abuse for children between the ages of 12 and 17 in 2013, and hundreds of babies are diagnosed with opioid-related neonatal abstinence syndrome each year.
“The pain, anguish and heartbreak (of) Oklahoma families, businesses, communities and individual Oklahomans is almost impossible to comprehend,” Hunter told the court.
“How did this happened? At the end of the day, your honor, I have a short, one-word answer: greed.”
The attorney general said evidence will show that drug companies “in their zeal to provide a magic drug … ignored centuries of experienced, well-documented scientific histories of deadly addiction epidemics.”
“Judge, money may not be the root of all evil, but I’ve learned this. … Money can make people and businesses do very bad things.”
Hunter and his team have focused their efforts on Johnson & Johnson, alleging the company acted as a drug “kingpin,” created a public nuisance and cost the state billions of dollars, destroying thousands of lives in the process. Johnson & Johnson and its subsidiary company, Janssen Pharmaceuticals, have vehemently denied the allegations and said the public nuisance accusation is being misused.
Defense lawyer Larry Ottaway, in laying out the case for Johnson & Johnson and Janssen, cited John Adams’ famous quote – “Facts are stubborn things” – to criticize allegations made by the state of Oklahoma.
Ottaway said that in 2009, when Janssen said opioids were rarely addictive, the Food and Drug Administration also said the drugs “rarely caused addiction.” He played a video that encouraged children to avoid taking the prescription drugs of others and concluded, “Jansen is not marketing opioids to kids.”
After the lunch break, Ottaway said he would not demean or question the pain of addiction, but called serious chronic pain “a soul-stealing, life-robbing thief.”
“It leads to depression,” he said. “It leads to suicide.”
One in five American adults suffer from chronic pain, according to the CDC, which estimates $560 billion in losses to pain each year, Ottaway said.
“Janssen did not invent this disease,” he said, but is trying to treat it.
He noted the opioid deaths reflected in the state’s chart did not differentiate between those taken as prescribed. He cited the CDC report the chart is based on as concluding that “states as regulators have the responsibility and authority to monitor and correct illegal prescribers.”
Ottaway cited a CDC report that stated, “Public health interventions to reduce prescription drug addiction must strike a balance between reducing misuse and abuse and safeguarding legitimate access to treatment.”
Referring to bouts of chronic pain, he said, “it is the memory of what it was like to be pain free that gets us through those times. I want everyone to think of what it would be like if, instead of going away, that pain stayed with a person every day, every hour, every week, every year and never went away.”
Ottoway concluded his opening Tuesday afternoon, noting that the total documented cases of addictions or death attributed to one of the Janssen medications in the case amounted to “zero.”
“Janssen’s conduct was not a nuisance,” he told the court. “They provided medically necessary medications. … They were lawfully (prescribed) by doctors in the state of Oklahoma.”
He said the state needs to prove that Janssen’s marketing statements were misleading, that doctors acted on that and that patients took the drug as prescribed and became addicted or died.
“How much proof of that will you hear in this case? None,” Ottaway said.
In a statement ahead of the trial, Janssen said its “marketing and promotion of these important prescription pain medications were appropriate and responsible. The FDA-approved labels for these prescription pain medications provide clear information about their risks and benefits. The allegations made against our company are baseless and unsubstantiated.”
Brad Beckworth, a private attorney hired by the state, told the court the far-reaching opioid crisis caused by prescription drugs breaks up marriages, rips apart families, has cost the nation $500 billion and “tears apart our community here in Oklahoma at the very seams.”
“This opioid crisis, this public health crisis we’re in,” he said, “it is a man-made crisis, but the evidence will show this crisis is a drug company-made crisis, and one of the causes is sitting right here to my right – Janssen and Johnson & Johnson. Make no mistake about it.”
The drugmakers marketed their lethal products to anyone and everyone, Beckworth said.
He said the damage was staggering: 135 opioid pills were available for every adult in Cleveland County, Oklahoma – the site of the trial; 139,359 years of life were lost as a result of overdose deaths of prescription opioids; 149,183 sales visits were made to doctors in Oklahoma between 1999 and 2005.
Beckworth likened Johnson & Johnson to OxyContin maker Purdue Pharma, and said the drug giants were in a competition over opioids.
“If you oversupply,” he repeated over and over, “people die.”
Quoting a song from the musical “Annie Get Your Gun” – “Anything you can do, I can do better” – Beckworth described Johnson & Johnson as mirroring Purdue in finding ways to get people to start taking its drug and keep taking it.
“Johnson & Johnson was in a race with Purdue to do the same things,” he said.
The state’s first witness, Dr. Julio Rojas, whose specialty is treatment of substance abuse disorders, testified that opioid addiction drastically changes the brain and can be fatal.
Hunter has said his team scoured millions of documents from Big Pharma and conducted hundreds of depositions of officials that will prove his case. “We are even more convinced than we were when we began this enterprise that these companies are the proximate cause for the epidemic in our state and in our country,” he said.
The attorney general has long considered himself a Reagan Republican who believes in big business. But he said this case has made it clear to him that sometimes “companies do bad things” and when they do, the chief law enforcement officer must act to “protect the people of their state.”
“When thousands of people die from drug overdoses attributable to prescription drugs, when you have hundreds of thousands of people who are addicted,” Hunter said, “public nuisance law is the best and most efficient way for you to protect the people of your state.”
Hunter filed the case in the summer of 2017. He scored two major settlements ahead of the trial: $270 million from Purdue Pharma, and another $85 million from Teva Pharmaceuticals, one of the biggest makers of generic drugs. The companies settled without admission of any wrongdoing.
The Oklahoma trial is the first major trial of nearly 2,000 cases around the country in which states, cities and hard-hit local municipalities are seeking to hold opioid makers accountable for the epidemic that has left hundreds of thousands of Americans dead and strapped resources in every state.
The case is being heard by state Judge Thad Balkman.
“It’s always important when it’s the first trial of this sort,” said Carl Tobias, a law professor at the University of Richmond. “It could provide a road map for other states in pursuing relief from the companies they want to hold responsible.”
He said legal scholars were paying close attention to it because of the precedent the case could set, including affecting a federal trial later this year that has folded together more than 1,500 cases. He said Purdue and Teva clearly didn’t want the Oklahoma case to reach trial due to the potential of being held responsible for billions of dollars in damages if they had gone before the judge.
Tobias also said the Oklahoma attorney general’s decision to pursue a public nuisance accusation against Johnson & Johnson is an interesting one because the charge is typically reserved for environmental cases, such as toxins spilling into a river by a company.
“This is an interesting twist on the idea of public nuisance,” Tobias said.
In a statement to CNN, Johnson & Johnson vowed to defend itself vigorously. John Sparks, an attorney for Janssen in Oklahoma, said public nuisance disputes in Oklahoma have often been limited to those “involving property or public spaces – for example, to remedy an intrusion from an overgrown hedge.”
“The State ignores this well-established law and now argues that public nuisance allows them to compel any party allegedly contributing in any measure to a social problem to fund all programs that state administrators dream up to address it,” the company said. “This is not and should not be the law. It threatens every company and industry doing business in the State of Oklahoma.”
In one filing, the Oklahoma attorney general said his case will demonstrate that Johnson & Johnson “acted as the kingpin behind this Public Health Emergency, profiting at every stage.”
“The public,” Hunter said, “deserves to know the face and name of the source, supplier and kingpin responsible for flooding and infecting this country with an unprecedented surplus of deadly drugs…”
Johnson & Johnson is best known for its baby powder, but the company for years marketed the extended-use opioid pill Nucynta, which it sold for $1 billion in 2015.
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Hunter said the public deserves to know whether the company deliberately targeted children, the elderly and veterans for opioid painkillers, and whether it blocked legislation and regulatory action aimed at limiting opioid availability. In its statement, Johnson & Johnson said the company “did not market opioids to children, and the State’s suggestion to the contrary is false and reckless.”
Hunter also alleges that Johnson & Johnson used two subsidiaries, Tasmanian Alkaloids and Noramco, that “created, grew, imported and supplied to J&J and its other co-conspirators, including Purdue, the narcotic raw materials necessary to manufacture the opioid pain medications thrust upon the unsuspecting public since the 1990s.”
Sparks, the Janssen attorney, called such accusations false. “The State ignores basic facts. Johnson & Johnson did not manufacture, sell, or market the FDA-approved medicines made by other companies that used Noramco” active pharmaceutical ingredients, he said.
The judge has set aside two months for the trial.
Correction: This story has been updated to correctly characterize the business relationship between Janssen Pharmaceuticals and Johnson & Johnson.