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In this May 28 photo, Judge Thad Balkman listens during opening arguments in Norman, Oklahoma, as a slide from the state’s presentation is displayed on a monitor in the trial against drugmakers blamed for contributing to the opioid crisis. (AP file photo)
In this May 28 photo, Judge Thad Balkman listens during opening arguments in Norman, Oklahoma, as a slide from the state’s presentation is displayed on a monitor in the trial against drugmakers blamed for contributing to the opioid crisis. (AP file photo)

Johnson & Johnson appeals opioid verdict

OKLAHOMA CITY – Johnson & Johnson and Janssen Pharmaceuticals, companies ordered to pay $465 million to help Oklahoma recover from an opioid addiction epidemic, will press an appeal with the Oklahoma Supreme Court on claims that a judge made numerous errors in a trial held earlier this year.

The state alleged in a 2017 lawsuit filed against J&J and other drug companies that they created a public nuisance by engaging in aggressive, deceptive marketing that led to a vast oversupply and widespread abuse of prescription painkillers. Tens of thousands of Oklahomans have become hooked on the drugs and many have died.

Some 2,000 similar cases are pending across the nation, including dozens filed separately by towns and counties in Oklahoma. The White House Council of Economic Advisers published a report in 2015 estimating costs of the opioid crisis at more than $500 billion.

Cleveland County District Judge Thad Balkman, who presided over a 33-day non-jury trial held in Norman, ruled that J&J and Janssen did create a public nuisance that affected entire communities and innumerable Oklahomans.

“The defendants’ acts and omissions were a direct cause of the public nuisance in Oklahoma. No act or omission by the state was a direct or proximate cause,” his ruling stated.

On Monday, attorneys for J&J filed paperwork arguing that the judge applied too broad an interpretation of public nuisance law.

“Disregarding a century of precedent, the court ruled for the first time that nuisance liability extends beyond real property use … (and) instead of limiting the state’s claim to Janssen’s allegedly misleading marketing, the court held Janssen responsible for third parties’ statements about medical science and for raw material sales authorized under DEA quotas,” the filing states. “Without explanation, the court found Janssen liable for the entirety of a complex crisis implicating a multitude of criminal, governmental, and medical actors.”

J&J attorneys also claim in their appeal that the company’s marketing of medications approved by the federal Food and Drug Administration should have been protected as free speech, and also that evidence presented by the state wasn’t enough to establish that either J&J or Janssen made false or misleading statements in their marketing of opioids.

“We recognize the opioid crisis is a tremendously complex public health issue and have deep sympathy for everyone affected. We do not believe litigation is the answer and are continuing to work with partners to find solutions,” J&J said in a press release.

The state has filed notice of its own intent to appeal the case. Attorney General Mike Hunter has said $465 million won’t be enough to reverse effects of the opioid epidemic and that the judge should have allowed for periodic reviews to determine if the drugmakers should be ordered to pay more. Hunter’s office didn’t issue any additional comment this week.

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