Oklahoma is poised to become the first state to go to trial in a lawsuit against the makers of pharmaceuticals blamed for contributing to the nation’s opioid crisis.
Although several states have reached settlements with drugmakers, including Oklahoma’s agreements this year with OxyContin-maker Purdue Pharma and Teva Pharmaceuticals, the trial set to begin Tuesday against consumer products giant Johnson & Johnson and some of its subsidiaries, could bring to light documents and testimony that show what companies knew, when they knew it and how they responded. The outcome could also shape negotiations on how to resolve the roughly 1,500 opioid lawsuits filed by state, local and tribal governments that have been consolidated before a federal judge in Ohio.
Here are some things to know about the Oklahoma trial:
Q: Who are the players?
A: Oklahoma will be represented by three law firms that stand to earn up to 25 per cent of any award, combined. The firms netted nearly $60 million for their work negotiating the Purdue settlement.
Although 13 companies were initially listed as defendants, pre-trial settlements have left Janssen Pharmaceutical Companies of Johnson & Johnson, which produced opioid drugs including Nucynta and the fentanyl patch Duragesic.
Cleveland County District Judge Thad Balkman, who is presiding in the case, is a former Republican state legislator appointed to the bench by former GOP Gov. Mary Fallin in 2013. Balkman, not a jury, will decide the case. He is allowing cameras in the courtroom, which is a rarity in Oklahoma.
Q: What are the allegations?
A: Oklahoma alleges that the drugmakers helped create a public health crisis in the state by extensively marketing highly addictive opioids for years in a way that overstated their effectiveness and underplayed the risk of addiction.
“The damage defendants’ false and deceptive marketing campaigns caused to the state of Oklahoma is catastrophic,” the lawsuit states. “As a result of the defendants’ egregious conduct, the state of Oklahoma paid, and continues to pay, millions of dollars for health care costs that stem from prescription opioid dependency.”
The companies maintain that they are part of a lawful and heavily regulated industry that is subject to strict federal oversight, and that doctors are the ones who prescribe the drugs. Much of the opioid crisis, they argue, is the result of illegal activity, such as drugs being stolen or fraudulently obtained.
Q: What has happened so far?
A: Both sides have been wrangling for two years over many pretrial issues in the complicated case, and while a settlement is still possible, the state and Johnson & Johnson both say they are ready for trial.
Because many of those documents involve trade secrets or marketing strategies and have been filed under seal, experts say much of the litigation so far has been marked by a great deal of secrecy.
“Lots of documents have been redacted, sealed or exchanged pursuant to confidentiality agreements,” said Stanford Law School professor Nora Freeman Engstrom, a nationally recognized expert in tort law and legal ethics who has been closely following the case.
“Starting (Tuesday), the court will pull back the curtain. It’ll provide one of the first opportunities to see what started, and what fueled, this public health crisis.”
Q: What’s unique about Oklahoma?
A: Since it’s the first of the many opioid lawsuits set to go to trial, the Oklahoma suit could stand as a test case for the companies and other states to hone their own legal strategies and arguments.
Q: Does the trial have significance outside of Oklahoma?
A: A federal judge in Ohio who is overseeing about 1,500 of the other cases has been pushing for the industry and governments to reach a global settlement that would make a dent in the opioid crisis. A verdict in this trial could help shape those negotiations.
Some family members of those who have died from opioid overdoses say they don’t want the cases settled and would rather see the companies’ role in the opioid crisis revealed in a trial.
Opioids, including prescription drugs and illicit ones such as heroin, were factors in nearly 48,000 deaths in the U.S. in 2017, according to the U.S. Centers for Disease Control and Prevention. That was more deaths than the number of people killed in automobile crashes that year.
Associated Press writer Geoff Mulvihill in Cherry Hill, New Jersey, contributed to this report.
Sean Murphy, The Associated Press