“If you over-supply, people will die.” What We’ve Learned from the Oklahoma Opioid Trial

Originally Published: June 7, 2019

Oklahoma Attorney General Mike Hunter accused Johnson & Johnson of helping to create the “worst man-made public health crisis in the history of our state and country.” That’s what he said to a packed Norman, Oklahoma courtroom during opening arguments in the state’s action against Johnson & Johnson and Jansen Pharmaceuticals.

The trial began on the heels of the announcement of Teva Pharmaceutical’s agreement to pay the state $85 million to settle the case.

According to Fortune, Johnson & Johnson’s opioid products at the center of the trial are a tablet called Nucynta (divested since 2015) and Duragesic, a transdermal fentanyl patch. Two sister companies Johnson & Johnson owned, produced, and processed ingredients from patented Australian poppies for use in its own and other companies’ narcotics. The state accuses those companies, such as Purdue Pharma — widely viewed as the star opioid villain — helped fuel the crisis.

The State of Oklahoma has brought the suit under the state’s nuisance laws. According to The Oklahoman newspaper, the State accuses Johnson & Johnson and a group of affiliated opioid makers of “The State of Oklahoma is accusing Johnson & Johnson and a group of affiliated opioid manufacturers of creating a multibillion-dollar public health crisis that has led to thousands of deaths and addictions.”

The tactic is similar to the state lawsuits filed in the 1990s against cigarette manufacturers. Insurance Journal reports while also including nuisance laws, most of the states’ claims are made under racketeering and conspiracy statutes. One of the state’s outside attorneys says the state is asking for between $13 billion and $17 billion in damages.

Because the proceeding in Oklahoma is a “bench trial,” the presiding judge will decide the merits of the case. The absence of a citizen jury tilts the advantage to Johnson & Johnson, says University of Florida law professor Lars Noah. “Jurors are famously bad at paying attention to their instructions,” he says. “And they’re famously generous at awarding astronomical damages.”

What’s Been Exposed:

As the second week of what could be a two-month trial ended, Oklahoma’s Attorney General Mike Hunter held a news conference to recap some of the eye-opening takeaways from the trial so far. According to Attorney General Hunter:

• At the height of the opioid epidemic, Johnson & Johnson’s sales representatives targeted over 140,000 Oklahoma doctors.
• Johnson & Johnson’s representatives billed themselves as pain experts but had no medical training.
• Under the guise of “education,” Johnson & Johnson representatives “influenced, targeted, hooked, and leveraged doctors into buying their opioids.”
• The Oklahoman reports a document introduced into evidence this week shows a coalition that included key opinion leaders paid by Johnson & Johnson considered targeting both elementary-aged children and returning war veterans with marketing information about pain management.
• According to testimony, Johnson & Johnson sales representatives targeted doctors who were high prescribers of opioids for frequent sales calls.
• Testimony during trial revealed Johnson & Johnson paid some of them tens of thousands of dollars a year to speak to other doctors about pain management at continuing medical education seminars and promotional activities sponsored by the drug company, Monday’s testimony revealed.
• A Johnson & Johnson corporate representative told the court the company paid hundreds of thousands of dollars to several pain management advocacy groups that advocated for the expanded use of opioids to treat a greater variety of pain than just cancer pain and end-of-life pain.
• According to testimony, Johnson & Johnson had an initiative where sales representatives went around to doctors before spring break touting the benefit of their opioid medications in treating spring breaks, sprains, strains, and lower back pain.

Source: Oklahoma Attorney General’s Office

Source: Oklahoma Attorney General’s Office

Source: Oklahoma Attorney General’s Office

What’s the market’s take on the trial?

The day before the trial began, Johnson & Johnson’s closing share price sat at $137.07. It fell to $131.33 at the close of the next day’s trading session. Since then, the stock has rebounded, closing Friday at $136.68 per share.

Source: Oklahoma Attorney General’s Office