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In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
A judge in Oklahoma ordered Johnson & Johnson to pay more than half a billion dollars to the state on Monday afternoon, finding that the pharmaceutical giant's business practices played an integral role in causing the state's burgeoning opioid epidemic. The company's "misleading marketing and promotion of opioids," said Cleveland County District Court Judge Thad Balkman, reading from the bench, "compromised the health and safety of thousands of Oklahomans."
In his 42-page opinion, Judge Balkman details how Johnson & Johnson and its subsidiary, Janssen Pharmaceutica, marketed their products by assuring doctors that what appeared to be addiction in patients was actually evidence of under-treated pain—and, thus, that the solution was prescribing more opioids. Sales representatives also used aggressive marketing tactics to target prescription-happy doctors, whom they referred to as "Key Customers" in internal correspondence.
The ensuing public health crisis, Judge Balkman said, constituted an "imminent danger and menace" to the state's 4 million residents. He cited a litany of devastating figures to prove his point: In 2015, over 326 million opioid pills were distributed to Oklahoma residents—enough for every adult to have 110 pills apiece. The state leads the U.S. in fentanyl prescription per capita. Two years ago, 4.2 percent of babies covered by SoonerCare—Oklahoma's Medicaid program—exhibited signs of prenatal exposure to prescription opioids.
The court found that Johnson & Johnson's actions had created a "public nuisance," which Oklahoma law defines to mean an act (or failure to act) that "annoys, injures or endangers" the health and safety of an "entire community." Traditionally, the public nuisance doctrine is a tort that is connected to one's objectionable use of land. (The classic public nuisance is a polluting factory.) Lawyers for the company seized on this point, calling the state's public nuisance argument a "radical" theory that is "unmoored from more than a century of Oklahoma case law." But Judge Balkman disagreed, noting that nothing in the state's definition of "nuisance" limits its application to property-related matters, and found that J&J's marketing practices qualified as sufficiently harmful, too.
A public nuisance finding gives Judge Balkman broad authority to order Johnson & Johnson to fix the problem, and he took advantage of it. His abatement plan includes, among other things, funding for comprehensive addiction treatment programs for Oklahomans who need it, along with "supplementary" services like housing assistance, employment placement, and mental health care treatment. Recipients of SoonerCare will also be eligible to receive non-opioid pain management care, including physical and/or cognitive behavioral therapy, paid for by one of the companies that helped create the crisis in the first place.
This could have been much worse for Johnson & Johnson. At trial, attorney general Mike Hunter asked the court to order more than $17 billion in equitable relief, arguing that meaningfully addressing opioid addiction would cost between $12 and $17 billion over several decades. The company's stock price jumped after the verdict was announced, as investors had been bracing themselves for the possibility of a much higher number. Johnson & Johnson has also pledged to appeal the verdict. “Janssen did not cause the opioid crisis in Oklahoma, and neither the facts nor the law support this outcome,” said general counsel Michael Ullmann in a statement.
Even so, results like this one are an encouraging sign for private plaintiffs and state attorneys general in Ohio and Massachusetts and elsewhere who seek to hold Big Pharma accountable for the costs of the opioid crisis. (There are around 2,000 similar cases pending against pharmaceutical companies, according to the New York Times.) And Judge Balkman's opinion is important for reasons that go beyond the dollar figure attached to it: Public nuisance doctrine was part of the theory behind the massive lawsuits filed against the tobacco industry in the mid-1990s. Like opioid manufacturers, tobacco companies made a legal product, distributed it throughout communities across the country, and strained to hide the negative consequences of using their product in the interest of making more money.
That litigation ended in 1998, when the five largest cigarette manufacturers agreed to reimburse states almost $250 billion for the costs of dealing with tobacco-related medical conditions. It remains the largest civil settlement in U.S. history.
Unsealed court documents show pharmaceutical companies flooded the country with highly addictive painkillers, while the DEA did nothing.
Originally Appeared on GQ