Oklahoma Supreme Court Reverses Landmark Opioid Ruling

By Pat Anson, PNN Editor

Oklahoma’s Supreme Court has reversed a landmark court ruling that found opioid drug makers created a public nuisance and were responsible for the state’s opioid crisis. It was the second major victory this month for the pharmaceutical industry, as it fights back against a tsunami of opioid litigation around the country.

The 5-1 decision by Oklahoma’s highest court throws out a $465 million verdict by Judge Thad Balkman against Johnson & Johnson. Former Oklahoma Attorney General Mike Hunter alleged that J&J and two other drug makers fueled the opioid crisis by flooding the state with painkillers. But the court said J&J can’t be held liable for the actions of others with legally prescribed opioids.

"We hold the opioid manufacturer's actions did not create a public nuisance. The district court erred in extending the public nuisance statute to the manufacturing, marketing, and selling of prescription opioids," the ruling states.

The decision is very similar to a ruling by a California judge last week, who said that J&J and three other drug makers can’t be held responsible for “adverse downstream consequences flowing from medically appropriate prescriptions.”

Like the California judge, Oklahoma’s high court acknowledged that an opioid epidemic exists and that it has caused the overdose deaths of thousands. While illicit use of prescription opioids led to many of those deaths, the court said few deaths occurred when individuals used opioids as prescribed.

“J&J had no control of its products through the multiple levels of distribution, including after it sold the opioids to distributors and wholesalers, which were then dispersed to pharmacies, hospitals, and physicians' offices, and then prescribed by doctors to patients. J&J also had no control over the laws and regulations that govern the disbursement of its prescription opioids or whether prescribers follow the laws,” the court said.

“We also cannot disregard that chronic pain affects millions of Americans. It is a persistent and costly health condition, and opioids are currently a vital treatment option for pain. The U.S. Food and Drug Administration has endorsed properly managed medical use of opioids (taken as prescribed) as safe, effective pain management, and rarely addictive.”

An Oklahoma patient advocate told PNN the court’s ruling was the “only logical outcome” because the state failed to prove its case.

“Their evidence never proved that bad marketing caused excess prescriptions nor the overdose crisis,” said Tamera Lynn Stewart, Policy Director for the P3 Political Action Alliance. “Looking at the totality of the evidence and data available from state and federal sources, it is clear that this crisis was always caused by attempts to fuel the drug war. If this use of public nuisance was allowed to stand, it would open up Pandora's box to future use against any company that produces a product for public use.”

Possible Impact on Other Cases

Plaintiff law firms representing state and local governments have filed over 3,000 lawsuits against drug makers, opioid distributors and pharmacies for their role in the opioid crisis. If successful, the law firms stand to make billions of dollars in contingency fees.

“Coming on the heels of a verdict in favor of opioid manufacturers in California, this news really casts significant doubt on similar cases that are still underway. I haven't read the ruling in this case yet, but the fact that the decision was 5-1, and that the lone dissenter agreed with the premise of the court's majority, but only wanted a different procedural outcome, means that the Oklahoma Supreme Court was not the least bit swayed by the state's case,” said Bob Twillman, PhD, former Executive Director of the Academy of Integrative Pain Management.

“It will be interesting to see if this court picked up on the same issues identified by the judge in California, namely, that the plaintiffs' presentation missed the mark with respect to an accurate and non-hyperbolic presentation of the facts. It's worth noting that much of the hyperbole came from ‘expert’ witnesses such as Andrew Kolodny.”

The state’s star witness in the Oklahoma trial was Kolodny, an addiction treatment specialist who founded Physicians for Responsible Opioid Prescribing (PROP), an anti-opioid activist group. Dr. Kolodny claimed that J&J and other drug makers operated an “opioid mafia” that funded patient groups and professional medical organizations that promoted the use of opioids.

“I don’t believe physicians should be helping drug companies market their products,” Kolodny testified in 2019. “It’s very easy to fool yourself when it’s profitable to fool yourself.”

Kolodny admitted under questioning that he was being paid $725 an hour to testify by the law firm of Nix Patterson & Roach and stood to make up to $500,000 for his services in Oklahoma. He also acknowledged that he was paid a similarly high hourly rate as a consultant for at least one other law firm involved in opioid litigation. Other PROP board members have also been paid witnesses in opioid litigation cases.

“It looks like the half-million dollars (or more) paid to him and to others is an indication of just how invested the plaintiffs are in the bill of goods they have been sold,” Twillman said in an email. “Meanwhile, while fully recognizing the toll taken by opioid use disorder, we need to keep reminding people of the harm caused by the pursuit of cases such as these -- the harm suffered by people with chronic pain who rely on opioid medications for pain relief, but whose access to those medications has been severely limited by the money-grab inherent in these cases. If there really is a public nuisance here, it may be that these cases are that nuisance.”

Purdue Pharma and Teva Pharmaceuticals settled out-of-court with Oklahoma before the case even went to trial, for $270 million and $85 million respectively. Several other drug companies have also settled out of court or are contemplating settlements rather than risk protracted and expensive litigation. The California and Oklahoma rulings are no doubt giving them second thoughts.

According to the CDC, the U.S. saw over 96,000 fatal overdoses in the 12 month period ending in March, 2021. Most of the deaths involve illicit fentanyl and other street drugs, not prescription opioids.

Oklahoma Judge Orders J&J to Pay $572 Million in Damages

By Pat Anson, PNN Editor

In a precedent setting case, an Oklahoma judge has ruled that Johnson & Johnson is partly responsible for fueling Oklahoma’s opioid crisis and ordered the health care giant to pay $572 million in damages.

“The opioid crisis has ravaged the state of Oklahoma and must be abated immediately,” said Cleveland County District Judge Thad Balkman, reading his decision aloud from the bench.

Balkman said J&J concocted a ‘marketing scheme” for opioid pain medication that overstated the drugs’ effectiveness and underplayed their risks. The company’s subsidiary, Janssen Pharmaceutical, produced less than one percent of the opioids prescribed in Oklahoma, but supplied 60% of the ingredients in painkillers sold by other companies.  

“They developed and carried out a plan to directly influence and convince doctors to prescribe more and more opioids, despite the fact that defendants knew increasing the supply of opioids would lead to abuse, addiction, misuse, death and crime,” the judge said.

Oklahoma had asked for $17.5 billion from J&J to pay for addiction treatment, emergency care, law enforcement and other services needed to address the opioid crisis. J&J said it would appeal the judges “flawed” ruling.

"Janssen did not cause the opioid crisis in Oklahoma, and neither the facts nor the law support this outcome," Michael Ullmann, Executive Vice President and General Counsel for J&J, said in a statement. “This judgment is a misapplication of public nuisance law that has already been rejected by judges in other states.

"The unprecedented award for the State's 'abatement plan' has sweeping ramifications for many industries and bears no relation to the Company's medicines or conduct." 

Balkman’s ruling is not legally binding on any other court, but as the first opioid case to go to trial, it is expected to have a significant impact on negotiations to resolve nearly 2,000 lawsuits filed by states, cities and counties against opioid makers, distributors and pharmacies. Many of those cases have been consolidated before a federal judge in Ohio.

Oklahoma previously reached a $270 million out-of-court settlement with Oxycontin-maker Purdue Pharma and an $85 million deal with Teva Pharmaceutical. Endo International and Allergan recently agreed to pay $10 million and $5 million respectively to two Ohio counties to avoid going to trial.

Compared to the cost and bad publicity that J&J went through defending itself in Oklahoma, those settlements look prescient.

As PNN has reported, three law firms that acted as lead outside counsel for Oklahoma stand to collect 25% of the damages and penalties awarded to the state. Oklahoma’s star witness, anti-opioid activist Dr. Andrew Kolodny, testified that he was paid $500,000 for his services at a rate of $725 an hour.