After a fiery hearing on Monday, with accusations of lying, Judge Thad Balkman dismissed a motion by the company to toss out a multi-billion dollar lawsuit by Oklahoma’s attorney general. Balkman said the state has presented sufficient evidence for the trial to continue.
The state has spent the past month laying out evidence alleging that Johnson & Johnson played a leading role in creating the epidemic with marketing strategies that dangerously misrepresented the risk of opioid addiction to doctors, manipulated medical research and drove prescribing of high strength narcotics to patients who didn’t need them.
The Oklahoma ruling will bolster hundreds of other lawsuits in the pipeline against leading opioid makers, drug distributors and pharmacy chains by counties, cities and states across the US blighted by an epidemic estimated to have claimed more than 400,000 lives over the past two decades.
On Monday, Johnson & Johnson argued that Oklahoma’s attempt to sue it under a public nuisance statute was wrong because the law was intended to address problems such as property disputes. The company’s lawyer, Stephen Brody, argued that if the state were to prevail, then public nuisance laws could be used to make McDonald’s pay for the obesity crisis, gun manufacturers for shootings, and the oil industry for climate change.
Brody also said Johnson & Johnson’s promotion of opioids was protected by the first amendment and the supreme court’s landmark Citizens United ruling, which prevents the government from restricting corporate spending on political advertising.
Brody added that the state failed to prove that Johnson & Johnson’s opioid subsidiary, Janssen, played any role in causing the epidemic because its drugs were only a fraction of the market.
The state’s lawyer, Brad Beckworth, was visibly angry as he repeatedly accused the company of lying.
Beckworth told the court: “That may be the most recalcitrant, strident and offensive argument I’ve ever heard. And that’s saying something because me and my firm have prosecuted the tobacco industry to the tune of $17.2bn. We represented the state of Florida against British Petroleum for the worst environmental disaster this country has ever known to the tune of $3bn.
“I have never seen conduct as reprehensible and as offensive as I have seen at the hands of Johnson & Johnson.”
Beckworth derided the free speech argument. He said: “No man or woman has ever laid down their life for this country so that a pharmaceutical company could come out and lie or hook kids on opioids.”
He challenged Johnson & Johnson’s claim it was selling its drugs within the guidelines set by the federal regulator, the US Food and Drug Administration. The FDA, he said, had sent it an order to desist from marketing one of its opioids for all types of chronic pain when it had only been approved for a much smaller group of patients.
Beckworth went on to say “this company is perpetuating the opioid crisis as we sit here today”.
Johnson & Johnson challenged accusations that its marketing helped cause the opioid epidemic by saying that while ice cream sales and crime went up in the summer “that does not mean that ice cream causes homicides”. Beckworth said he was astonished by the parallel, calling it “offensive”.
He said: “This company has literally compared the opioid epidemic to ice cream sales.”
Beckworth said Johnson & Johnson’s attempt to dismiss the case was mostly a PR stunt because the company’s share price dropped sharply after the state laid out damning evidence about the part it played in league with other opioid makers to drive up prescribing of their drugs with an intense campaign targeting doctors with false claims about their safety and effectiveness.
He said: “It’s a PR stunt. That’s all it is. It was fear these TV cameras were going to show the public the truth about Johnson & Johnson.”
Brody responded by saying he was caught off guard by the intensity of Beckworth’s presentation. He said: “I’m somewhat surprised by the invective.”