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Oklahoma, West Virginia lawsuits against Johnson & Johnson pursue different legal angles

MORGANTOWN, W.Va. — Just three days after Attorney General Patrick Morrisey filed suit against opioid makers Johnson & Johnson and its Janssen subsidiary, an Oklahoma judge approved a $572 million judgment against those companies.

Patrick Morrisey

Both suits pursue common threads, so The Dominion Post explored their similarities and differences and asked Morrisey how the Oklahoma judgement bodes for a positive outcome in his suit (with the understanding Johnson & Johnson plans to appeal the judgment).

Oklahoma District Judge Thad Balkman, in the District Court of Cleveland County, awarded the judgment after two years of litigation and a non-jury trial.

He based the figure — $572,102,028 – on the estimated costs of the first year of an abatement plan drawn up by the Oklahoma Department of Mental Health and Substance Abuse Services. The plan includes such tins as prevention, treatment and recovery services, medical screening services and developing Neonatal Abstinence Syndrome treatment evaluation standards.

The states are pursuing somewhat different legal angles. Oklahoma solely pursued a public nuisance complaint. Based on his understanding of Oklahoma’s law – public nuisance “annoys, injures or endangers the comfort, repose, health or safety of others” – Balkman said, “The defendants engaged in false and misleading marketing of both their drugs and opioids generally; and this conduct constitutes a public nuisance.”

Morrisey, pursuing this case along with a sister suit against Teva (which was originally named, along with Purdue Pharma in the Oklahoma suit) alleges a public nuisance count in each, but his first count alleges violation of the state Consumer Credit and Protection Act.

Morrisey says Johnson and Janssen engaged in misrepresentations and factual omissions, and unfair, deceptive and unconscionable acts.

The Oklahoma and West Virginia suits both note that Johnson & Johnson was the pioneer of the opioid industry. Its subsidiaries, Tasmanian Alkaloids and Noramco, cultivated, processed and marketed opium poppies – particularly the potent Norman Poppy. The Oklahoma suit goes farther, noting they not only supplied them to the parent company, but to such drug makers as Purdue and Teva. By 2105 Tasmanian and Noramco had jointly become the world’s top supplier of opioid ingredients.

Both the Oklahoma and West Virginia suits – along with about 1,500 others from towns, cities, counties and states across the country consolidated in Ohio federal court – target at length Johnson’s marketing practices.

They allege Johnson’s sales staff pushed prescriptions for off-label use for chronic pain, instead of the cancer pain opioids were approved for. Johnson and other drug makers used advertising, sales staff and educational materials to convince doctors and the public that pain was undertreated and using opioids for chronic pain posed a “low risk of abuse and a low danger.”

Johnson encouraged increasing dosages, and consequent dependence, saying there was no upper dosage limit. With no clinical evidence, Johnson promoted the benefits of opioids for long-term pain treatment.

Johnson financially backed physicians, termed Key Opinion Leaders, and several front organizations – the American Academy of Pain Medicine and the American Pain Foundation, both led by KOLs – to promote opioid use via books, medical articles and continuing education materials.

Oklahoma’s suit points out that sales reps were instructed to stay out of the “addiction ditch,” meaning avoid discussion addiction and emphasize pain relief, citing as often as possible one KOL’s term “Opiophobia” as a means to lower prescribers’ resistance to prescriptions.

“Defendants’ corporate representative [who testified during the trial] was not aware of any training provided to defendants’ sales force in Oklahoma on the disease of addiction,” the judge said.

Morrisey spokesman Curtis Johnson [no ties to the company] fielded questions about the suits.

Addressing the many similarities among all the opioid suits, he declined to say if Oklahoma’s or any of the others was a model for the Janssen and Teva suits. “Our investigations have been ongoing for years.”

Asked if the judgement bodes well for West Virginia’s suits, he said, “All culpable parties within the pharmaceutical supply channel must be held accountable. The Oklahoma verdict reinforces that message and certainly strengthens West Virginia’s argument. Regardless, we believe our office has a strong case, although we expect the defendant to vigorously contest our allegations.”

Prior to Balkman’s ruling, Purdue had settled with Oklahoma $270 million and Teva settled for $85 million.

So far, West Virginia’s largest settlement against an opioid maker is $37 million, against McKesson, announced last May. Oklahoma has just over tice the population of West Virginia, but the judgement was many times larger than the McKesson settlement.

Johnson offered some perspective on how the judgment might reflect on any West Virginia settlement or judgement.

It’s premature to speculate, he said. Statutes, legal precedents, evidence, claims and causes of action vary from state to state.

For instance he said, Oklahoma’s attorney general was able to file on behalf of all the political subdivisions. In West Virginia, the AG has no such authority and at least 30 West Virginia towns, cities and counties have federal suits among those pending in Ohio.

“So therefore neither our lawsuits nor prior settlements interfere with any allegations brought by counties, municipalities or other political subdivisions within West Virginia. You could see significant awards for West Virginia arise out of the subdivision claims alone.”

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