By Pat Anson, PNN Editor

In a major victory for the pharmaceutical industry, a California judge has ruled that four opioid manufacturers did not use deceptive marketing to promote pain relievers and are not liable for the state’s opioid crisis.

Three California counties and the city of Oakland filed suit against Johnson & Johnson, Allergan, Endo and Teva Pharmaceuticals, claiming they used false and misleading marketing to increase sales of prescription opioids.

But in Monday’s ruling, Orange County Superior Court Judge Peter Wilson said there was no evidence that “medically appropriate prescriptions” fueled the opioid crisis.

"There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need," Judge Wilson wrote in a 41-page ruling. "Any adverse downstream consequences flowing from medically appropriate prescriptions cannot constitute an actionable public nuisance.''

Plaintiff law firms representing local governments across the nation have filed over 3,000 lawsuits against drug companies for their role in the opioid crisis. Several cases have already been settled out of court.

Los Angeles, Orange and Santa Clara counties and the city of Oakland wanted the four drug companies to pay over $50 billion in damages. The law firm of Motley Rice filed the initial lawsuit in 2014 on behalf of Santa Clara county, and the case snowballed from there into nationwide litigation against opioid makers, distributors and pharmacies. If successful, plaintiff law firms stand to make billions of dollars in contingency fees.

Judge Wilson’s tentative ruling – which only applies to the California case -- was the first big win for drug companies involved in opioid litigation. The plantiff law firms said they would appeal.

“The people of California will have their opportunity to pursue justice on appeal and ensure no opioid manufacturer can engage in reckless corporate practices that compromise public health in the state for their own profit,” the lawyers said in a statement.

Addiction Claims Debunked

Anti-opioid activists have long claimed that “overprescribing” of opioid medication fueled the U.S. drug abuse crisis, an argument that Wilson rejected. 

“Plaintiffs made no effort to distinguish between medically appropriate and medically inappropriate prescriptions. Mere proof of a rise in opioid prescriptions does not, without more, prove there was also a rise in medically inappropriate prescriptions,” Wilson said in his ruling.

Wilson also disputed claims made by Dr. Anna Lembke, a Stanford psychiatrist and board member of Physicians for Responsible Opioid Prescribing (PROP). As a paid expert witness testifying for the plaintiffs, Lembke said one in four patients prescribed opioids become addicted.

“As Defendants point out, the studies relied upon by Dr. Lembke for that conclusion are inadequate to support it. The more reliable data would suggest less than 5%, rather than 25%. Under either number, addiction based solely on the patient having been prescribed opioids does not occur in ‘most of these patients,’” Wilson said.

Johnson & Johnson issued a statement calling Wilson’s ruling “well-reasoned.” It said the company’s “marketing and promotion of its important prescription pain medications were appropriate and responsible and did not cause any public nuisance.”

In 2019, an Oklahoma judge ruled J&J was liable for $465 million in damages for its marketing of opioids, a case that is still under appeal. The company recently proposed a nationwide settlement of $5 billion and agreed to stop making opioid medication. It voluntarily halted sales of prescription opioids last year.

(Update: On November 10, the Oklahoma Supreme Court overturned the ruling against J&J.)

Although opioid prescribing has fallen significantly over the past decade, overdoses have risen to record highs. The vast majority of drug deaths involve illicit fentanyl and other street drugs, not prescription opioids.      

The DEA recently issued a public safety alert warning of a surge in counterfeit pills made with illicit fentanyl. The agency has also proposed further cuts in the legal supply of prescription opioids in 2022.