So far, Oklahoma Attorney General Mike Hunter has secured about $355 million from two groups of defendant drugmakers in the state’s lawsuit against opioid manufacturers, and he’s trying to make the case that even more money should come Oklahoma’s way in the first such state case to go to trial.
While Hunter presses the claim that Johnson & Johnson is to blame for Oklahoma’s opioid epidemic, he’s also facing criticism, some from his own Republican colleagues, about his team’s deal making and go-it-alone style.
Because Oklahoma’s is the first case to proceed to trial, the litigation and the state’s earlier settlements with Oxycontin-maker Purdue Pharma and Israeli-owned Teva Pharmaceuticals are being closely watched, especially with roughly 1,500 similar lawsuits filed by state, local and tribal governments consolidated before a federal judge in Ohio.
Some things to know about the trial that began May 28:
JOHNSON & JOHNSON’S CASE:
The New Brunswick, New Jersey-based consumer products giant and its subsidiaries, including Janssen Pharmaceuticals, argue that they participated in a lawful and strictly regulated industry and that their marketed products represent only a tiny fraction of the opioids used in Oklahoma. Johnson & Johnson says that much of the nation’s opioid crisis is the result of illegal activity, such as drugs being stolen or fraudulently obtained. John Sparks, the company’s Oklahoma counsel, said the state’s estimate is wildly overinflated and described Hunter’s effort as “a far-reaching odyssey to seek damages disguised as abatement.”
Oklahoma claims the companies are responsible for fueling the state’s opioid crisis by using an aggressive and misleading marketing campaign that overstated the effectiveness of opioids for treating a broad range of pain, while downplaying addiction risks. Citing Johnson & Johnson subsidiaries that produced the raw materials used to produce the drugs, Hunter last week characterized the defendants as the “kingpin” of an epidemic that has created a generation of addicts and killed nearly 7,000 Oklahoma residents. The state has proposed a $17.5 billion abatement plan to abate the problem over the next 30 years.
The state rested its case this week after presenting its last witness, a former Johnson & Johnson sales representative.
PUBLIC NUISANCE CLAIM:
Shortly before the start of Oklahoma’s trial against the drugmakers, Hunter dropped claims of fraud, unjust enrichment and violations of the state’s Medicaid laws, leaving only the allegation that the companies created a public nuisance that must be abated. Experts say Hunter’s legal strategy is a unique one and potentially a big gamble.
“This is new territory, and even plaintiffs admit that this is not the usual application of public nuisance,” said Ausness, who said such claims typically involve interference with the rights of the general public.
Hunter himself was critical of cities such as New York and San Francisco using public nuisance claims to abate damage from climate change. In a 2018 editorial, Hunter said such claims were “wanton attempts at jackpot justice in order to fix local deficit problems and set national energy policy.”
In defense of his editorial, Hunter said it’s “absurd to compare the theory of climate change with the opioid epidemic.” He said the opioid epidemic can be curtailed through a focused series of actions, while climate change is a “hypothetical global phenomenon with countless factors and influences.”
The state’s $270 million deal with Purdue and $85 million settlement with Teva both faced criticism from lawmakers, who maintained they should be responsible for dispersing funds and were left in the dark on settlement discussions. The Purdue settlement, which calls for about $200 million to go into a trust to fund an addiction studies center at Oklahoma State University in Tulsa, prompted lawmakers to pass a bill clarifying that any settlement funds go the state treasury. After the Teva settlement was announced, the Republican governor and legislative leaders argued the deal violated the spirit of the new law and asked to intervene in the case before a mediator was appointed and an agreement reached. The money will go into a special state fund that lawmakers will decide how to spend.
“The Legislature has not changed its position that the money needs to go into the state treasury,” said Rep. Jon Echols, R-Oklahoma City. “That’s the law, and the state statute is very clear.”
Echols said putting the money into the state’s general revenue fund also gives the state flexibility to deal with situations like the federal government seeking a share of Oklahoma’s settlement with Purdue.
Hunter also has faced criticism over the massive fees paid to outside attorneys hired by the state — about $60 million from Purdue and $13 million from Teva. But those fees were spelled out in the state’s contingency-based contract with outside attorneys, who wouldn’t get paid if the state lost.
“Experts charge $1,000 an hour, so it would cost them millions of dollars to try this case,” said University of Kentucky law professor Richard Ausness, who has written extensively about opioid litigation. “So it’s pretty lucrative if you win, but it’s a contingency fee and if you lose, you don’t get anything and they will have invested a lot of money in a case like this.”
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