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What Okla. judgment against Johnson & Johnson means for opioid accountability

An Oklahoma judge delivered a $572 million judgment against pharmaceutical giant Johnson & Johnson in the first major legal decision to go against a drugmaker for its role in the opioid crisis. The judge found the company’s marketing practices helped flood the state with painkillers. William Brangham talks to StateImpact Oklahoma’s Jackie Fortier about the case's unusual argument and broad impact.

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  • John Yang:

    Today's $572 million judgment against Johnson & Johnson is the first major legal decision against a drugmaker for its role in the opioid crisis.

    As William Brangham reports, the Oklahoma trial has been closely watched by thousands of litigants in other states and jurisdictions.

  • William Brangham:

    That's right, John.

    While this was a clear victory for Oklahoma, the state had been seeking far more, over $12 billion, from the drugmaker. During the seven-week trial in Oklahoma, lawyers for the state called Johnson & Johnson a drug kingpin, arguing its sales force downplayed their painkillers' addictive qualities, which then helped lead to thousands of deaths in the state since 2000.

    Oklahoma Attorney General Mike Hunter heralded the judge's ruling this afternoon.

  • Mike Hunter:

    Today, Judge Balkman has affirmed our position that Johnson & Johnson, motivated by greed and avarice, is responsible for the opioid epidemic in our state.

    Johnson & Johnson will finally be held accountable for thousands of deaths and addiction caused by their activities. Well, there's no question in my mind that these companies knew what was going on at the highest level. They just couldn't quit making money from it. And that's why they're responsible.

  • William Brangham:

    For its part, Johnson & Johnson argued its drugs accounted for less than 1 percent of the U.S. opioid market, and were similarly a tiny fraction of prescriptions in Oklahoma. It also denied any deceptive sales practices.

    For the record, Johnson & Johnson is a funder of the "NewsHour."

    Jackie Fortier has been reporting on all this for StateImpact Oklahoma, and National Public Radio. She was in the courtroom today.

    Jackie Fortier, thank you very much for being here.

    Obviously, this is an enormous victory for the state and really the first loss for one of the opioid manufacturers that we have seen thus far. Everything else has been settlements.

    The judge today was particularly tough on the company in its ruling, wasn't he?

  • Jackie Fortier:

    Yes.

    He was — Judge Balkman detailed in the judgment that the $572 million that he ordered the company to pay immediately was to remediate the public nuisance. He even brought up things that were — he even brought up parts that were talked about during the trial, saying that there was a fetal problem with children in the state who have — who are born with opioids in their system.

    So, the judge really highlighted a lot of the main arguments that the state made during the case.

  • William Brangham:

    Can you tell us a little bit about more — about what the state alleged?

    I mentioned that the state said that Johnson & Johnson basically hid the fact that they knew that these drugs were highly addictive. What else did the state allege Johnson & Johnson did wrong here?

  • Jackie Fortier:

    Yes.

    Well, I mean, the big thing that the attorney general, Mike Hunter, alleged was that — and he said it multiple times, including today at the press conference — that Johnson & Johnson was the kingpin of the opioid crises.

    And when he says that, he's referring to their former ownership of two companies out of Tasmania and Australia that grew and developed a highly potent opioid poppy, and that companies, those companies then sold that base ingredient, that raw narcotic, to other opioid manufacturers, like Purdue Pharma, which produced OxyContin with it.

    So, during the course of the trial, the state argued, a rising tide lifts all boats. Johnson & Johnson knew that, even if it wasn't their opioids that were being sold, their deceptive marketing campaign resulted in more sales of opioids and more sales for their bottom line.

    Something to remember, Johnson & Johnson sold those two companies in 2016.

  • William Brangham:

    You mentioned initially that the state had used a somewhat novel legal strategy to go after the company. They used what's called a public nuisance law.

    Can you explain what that legal strategy argued?

  • Jackie Fortier:

    Yes, public nuisance is a very broad law in Oklahoma.

    It really refers to any public nuisance that in regards even to health outcome. Before this, it has been successfully litigated in regard to lead paint, things along those lines. It usually has to do with property, which is why today's decision is very interesting.

    I mean, West Virginia, for example, filed a very similar lawsuit against Johnson & Johnson, citing public nuisance law last week. So now that we have seen, at least in one court case, that it works, we may see more attorneys general decide to take up this public nuisance claim and see if they can get money for their own state.

  • William Brangham:

    As we know, there's these 2,000 or so other cases that we're all gathered under one federal judge in Ohio, and those are against other manufacturers, distributors and manufacturers of these drugs.

    Everyone there has got to have been watching what was going on in Oklahoma today to see whether or not this was a bellwether. What do you think is the likely impact on that much larger pool of cases?

  • Jackie Fortier:

    Well, public nuisance is one of the claims that's been made in the consolidated Ohio case.

    I mean, it really just gives more leverage, really, to the side of the communities who are suing, whether that be tribes or other municipalities. They might be able to bring other drug companies or distributors to the table and say, hey, it worked here. Maybe you're willing to settle with us now, rather than going for a trial, because, as of right now, Johnson & Johnson now has to pay over $500 million.

    And we saw before, I mean, Purdue Pharma settled with the state for $270 million. Teva, which makes generic opioids, settled for $85 million. They were initially both parties to this litigation, but they settled before it began.

    So Johnson & Johnson could be on the hook for this full 570-some-odd million dollars. And, you know, other companies are going to look at that and say, hey, maybe it's worth it to just settle.

  • William Brangham:

    Absent an appeal, which I believe Johnson & Johnson has said they're going to do, what is Oklahoma going to do with this 500-something million dollars?

  • Jackie Fortier:

    There was an abatement plan that was put forward during the trial.

    The state initially asked, by the way, for $17.5 billion to fund their 30-year plan. So they got a fraction of what they really asked for.

    At the press conference earlier today, Terri White, who's the commissioner for mental health and substance abuse in Oklahoma, said that they would be able to really start funding projects and treatment.

    It's really an open question of how that's going to work. There was also a law that was passed after the Purdue settlement in Oklahoma. So the legislature may be able to allocate these funds.

    So whether or not they get allocated towards opioid treatment or prevention is just really a big question mark right now.

  • William Brangham:

    All right, Jackie Fortier of StateImpact Oklahoma, thank you very, very much.

  • Jackie Fortier:

    Yes, I'm happy to. Thanks.

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