Update: Teva Pharmaceuticals settled with the state on Sunday for $85 million.
Oklahoma’s upcoming trial against drugmakers could prove to be an important test on who will pay for the opioid crisis and how much money states are willing to accept.
The trial, which is set to start Tuesday, will be closely watched. And not only because it will be nationally televised.
There are hundreds of similar lawsuits pending across the U.S. in state and federal courts. The state of Oklahoma’s case against drug and consumer products giant Johnson & Johnson and the smaller Teva Pharmaceuticals will be the first major state trial among those cases.
The trial is predicted to be the longest in state history. The stakes are high.
Attorney Bob Burke, who has been appointed by the court to coordinate the trial’s media coverage, briefed reporters on the court’s rules on Friday afternoon. More than 100 reporters from local and national news organizations have been credentialed.
“This is a very serious trial that will have great impact upon a lot of folks in this country, including the drug manufacturers in the country. It’s the first case of its kind to go to trial,” Burke said.
Oklahoma Attorney General Mike Hunter filed the lawsuit against drug manufacturers in June 2017. The state’s suit accuses drugmakers of intentionally fueling the opioid crisis with an aggressive marketing campaign to doctors and consumers that downplayed opioids’ addictive qualities.
The trial will take place at the Cleveland County Courthouse — less than a mile from the University of Oklahoma’s campus in Norman. Judge Thad Balkman in April ruled the case would be tried before him instead of a jury. From the beginning he has been adamant there be no delays and that the trial begin on May 28.
The state last month dropped all of its claims against the drugmakers except for public nuisance, which in part, claims the opioid crisis has affected the public at large and not only individual opioid users.
At the time, Hunter said the move would essentially de-clutter the case and refocus it on the state’s central claim.
“The team and I remain laser focused on the goal we set since filing this lawsuit: holding those responsible for creating this crisis accountable and bring an end to the opioid epidemic in Oklahoma,” Hunter said in a news release.
Hunter has said the final payout could run in the billions of dollars.
Richard Ausness, a professor of law at the University of Kentucky who tracks opioid cases, said the case might settle at some point. That could set a precedent for other cases.
“That could be important because it gives some idea of what defendants might settle for and what plaintiffs are ready to accept. It could be an indicator of other settlements,” Ausness said.
The state settled with Purdue Pharma, the maker of OxyContin, a powerful opioid painkiller, earlier this year. At the time, Hunter said he had to consider the fact that Purdue was exploring Chapter 11 bankruptcy.
The drug manufacturer, and the family who owns it, agreed to pay $270 million to resolve its claims with the state. The bulk of those funds will go to addiction research through Oklahoma State University Center for Health Sciences Center for Wellness & Recovery.
Ausness said Johnson & Johnson might follow suit.
Johnson & Johnson, known for its baby products and Band-Aids among other goods, has long marketed itself as a family-friendly company.
“It’s not just a legal battle, it’s also a PR battle,” Ausness said. “I think from the defendants point of view, A: It’s going to cost a ton to litigate, and also, what kind of dirt is coming out?
“I don’t think Johnson & Johnson in particular wants that kind of publicity.”
Attorneys for Johnson & Johnson and its subsidiaries will argue during the trial the company acted responsibly in the marketing and promotion of opioids.
“Its FDA-approved medicines helped people in pain and Janssen successfully worked with regulators to prevent diversion and abuse of its opioid medications,” said John Sparks, Oklahoma counsel for Johnson & Johnson and Janssen Pharmaceuticals, Inc, in a statement.
“Janssen will continue to defend itself, because the claims raised against it in the Oklahoma litigation have no basis in fact or the law – and that will be made clear during trial.”
Though the outcome of Oklahoma’s case could be an indicator for other cases, it’s hard to predict how much of a trendsetter the trial’s outcome will be.
“Personally, I think that these sort of isolated state cases probably aren’t going to be too significant as far as the trial court resolution goes,” Ausness said. However, that could change if the state receives a large punitive award, though he called that outcome “unlikely.”
“It has some potential,” Ausness said. “It has some significance, obviously, but I’m not sure it would be a trendsetter.”
Similarities to Big Tobacco lawsuits
The opioid lawsuits have been compared to cases 45 states, including Oklahoma, filed against four large tobacco companies in the late 90s, which lead to a national settlement agreement. As part of the agreement, states receive an annual payment from the tobacco industry as long as cigarettes are sold nationally.
Oklahoma’s Tobacco Settlement Endowment Trust has aimed to fund programs that address public health issues.
However, Ausness says there is a difference between opioid and tobacco companies.
“Practically nobody liked the tobacco companies,” he said. “Most people felt cigarettes were pretty worthless, dangerous and all that. Opioids, when used properly, are very beneficial.
“I don’t think anyone would want to put drug companies out of business.”