In its final filing of a case being watched around the country, the state of Oklahoma implored a judge to deliver a record $17.2 billion verdict against Johnson & Johnson for flooding the state with opioids. It said the drug company created a crisis that killed more than 6,000 Oklahomans, destroyed families and wreaked havoc on communities.
“The source of this crisis is the flood of prescription opioids that has inundated Oklahoma for the past two decades,” attorneys for the state wrote in its more than 700-page court filing. “It was brought into being by the pharmaceutical industry, including Defendants. The harm it has wrought, and the threat it continues to pose to the health, safety and welfare of the State, make it the worst nuisance Oklahoma has ever known.”
Both parties entered their proposed findings of fact on Wednesday, essentially making one final pitch to Cleveland County District Judge Thad Balkman about the merits of their arguments following seven weeks of trial.
Balkman is expected to deliver his ruling later this month.
Johnson & Johnson argued in its filing that the state’s case was flimsy, saying that the public nuisance accusation is based on “radical theories unmoored from more than a century of Oklahoma case law.”
“In addition to those fundamental legal defects, the State undeniably failed to prove its case,” Johnson & Johnson said in its nearly 200-page filing.
The drug company blasted the state’s witnesses and argued that the state offered no explanation how its subsidiary, Janssen Pharmaceuticals, contributed to the opioid crisis.
“In sum, the State failed to prove that Janssen misleadingly promoted opioids, that any of Janssen’s promotions caused any harm in Oklahoma (let alone a crisis of opioid abuse), or that its proposed remedy was a prudent and justified response to the present crisis,” Johnson & Johnson said.
Verdict could be largest ever in bench trial
The state is asking Balkman to deliver a nearly $17.2 billion verdict to create an abatement plan that would fund government programs over 30 years to help bring an end to the state’s opioid epidemic. “The State’s proposed abatement plan is reasonable and necessary,” the state argued.
If Balkman rules in favor of the state’s entire request, the verdict would be the largest in the nation’s history from a bench trial, legal experts say.
“If Judge Balkman rules in favor of Oklahoma and awards the damages that the state seeks, the case will be historic as the most substantial verdict in this type of litigation,” said Carl Tobias, a professor of law at the University of Richmond. “It will also be important because it could be the first case to recognize the nuisance theory in the opioid context.”
Tobias said attorneys across the nation – especially those representing the nearly 2,000 cities, counties and municipalities slated for trial in federal court in Ohio this fall – have been “watching and learning from the case Oklahoma assembled, while defendants have been watching for vulnerabilities in that case.”
No matter how Balkman rules, Tobias said he believes the case will end up before the Oklahoma Supreme Court following appeals.
Oklahoma Attorney General Mike Hunter has led the charge against Johnson & Johnson, calling the company a drug “kingpin” and saying the company should pay for its role in creating the epidemic.
The state has pointed to the fact that Johnson & Johnson once owned two subsidiaries in Tasmania that allowed it to supply more than 60% of all active ingredients for opioids manufactured and sold in the United States, including the blockbuster painkiller OxyContin made by Purdue Pharma.
“If you oversupply, people will die. That’s a simple answer to a complex problem,” Brad Beckworth, an attorney representing the state, said during closing arguments.
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The state had presented an abatement plan of about $17.5 billion at trial. In its filings Wednesday, the state reduced the figure to $17.17 billion to account for $355 million the state received in settlements with Purdue Pharma and Teva Pharmaceuticals.
In its filing Wednesday, Johnson & Johnson maintained it did nothing wrong and said the state took “potshots at stray promotional statements plucked from three decades” of material to create a wild public nuisance theory.
“This case illustrates the absurd results that flow from such legal distortions,” Johnson & Johnson said.
It’s now up to Balkman to decide.