Johnson & Johnson Ruling Could Set Major Precedent in Opioid Crisis
“Defendants made substantial payments of money to a variety of different pain advocacy groups and organizations that influence prescribing physicians and other health care professionals.”
“In a landmark decision, an Oklahoma judge on Monday ordered pharmaceutical giant Johnson & Johnson to pay $572 million for its role in the state’s opioid crisis,” CNN reported earlier in the week regarding a landmark decision which could lead to pharmaceutical companies being held responsible for the alarming rate of opioid deaths within the United States.
The following graphs provided by the National Institute on Drug Abuse (NIH) highlight the recent increase in deaths by overall drug overdose, opioid overdose and prescription opioid overdose.
- Figure 1. National Drug Overdose Deaths—Number Among All Ages, by Gender, 1999-2017. More than 70,200 Americans died from drug overdoses in 2017, including illicit drugs and prescription opioids—a 2-fold increase in a decade. The figure above is a bar and line graph showing the total number of U.S. overdose deaths involving all drugs from 1999 to 2017. Drug overdose deaths rose from 16,849 in 1999 to 70,237 in 2017. The bars are overlaid by lines showing the number of deaths by gender from 1999 to 2017. (Source: CDC WONDER)
- National Overdose Deaths Involving Any Opioid—Number Among All Ages, by Gender, 1999-2017. The figure above is a bar and line graph showing the total number of U.S. overdose deaths involving opioids from 1999 to 2017. Any opioids includes prescription opioids (and methadone), heroin and other synthetic narcotics (mainly fentanyl). Drug overdose deaths rose from 8,048 in 1999 to 47,600 in 2017. The bars are overlaid by lines showing the number of deaths by gender from 1999 to 2017. Overall, there has been a higher number of drug overdose deaths among males. (Source: CDC WONDER)
- Figure 4. National Overdose Deaths Involving Prescription Opioids—Number Among All Ages, 1999-2017. The figure above is a bar and line graph showing the total number of U.S. overdose deaths involving prescriptions opioids (including methadone) from 1999 to 2017. Drug overdose deaths involving prescription opioids rose from 3,442 in 1999 to 17,029 in 2017. Since 2016, however, the number of deaths has remained stable. The bars are overlaid by lines showing the number of deaths involving prescription opioids in combination with other synthetic narcotics (mainly fentanyl) and without other synthetic narcotics from 1999 to 2017. The number of deaths involving prescription opioids in combination with synthetic narcotics has been increasing steadily since 2014 and shows that the increase in deaths involving prescription opioids is driven by the use of fentanyl. (Source: CDC WONDER)
The Verdict and Johnson & Johnson’s Response
Thad Balkman, a Cleveland County District Judge, issued the verdict stating the following concerning Johnson & Johnson in his ruling:
“The facts show Defendants engaged in false and misleading marketing of both their drugs and opioids generally, and the law makes clear that such conduct is more than enough to serve as the act or omission necessary to establish the first element of Oklahoma’s public nuisance law.
“The First Amendment to the United States Constitution does not prohibit imposing liability for the acts complained of here. First Amendment rights may not be used as the means of the pretext for achieving substantive evils which the legislature has the power to control.”
Quickly after the verdict was rendered, Johnson & Johnson released a public statement on their company website:
“Johnson & Johnson (NYSE: JNJ) and its Janssen Pharmaceutical Companies today announced they will appeal the $572 million civil judgment entered in Cleveland County District Court in the State of Oklahoma’s lawsuit against opioid manufacturers. The Company is confident it has strong grounds to appeal this decision.”
“The decision in this case is flawed. The State failed to present evidence that the Company’s products or actions caused a public nuisance in Oklahoma. The State’s claims violate fundamental principles of due process by seeking to hold a company liable for conduct permitted under federal law and regulations,” the company continued.
Johnson & Johnson’s Marketing Practices and The Oklahoma Pill Mill
Two of the key points included in Balkman’s decision involve Johnson and Johnson’s marketing methods, with low regard to the possible “pill mill” effects such actions could have on the state of Oklahoma.
“Defendants made substantial payments of money to a variety of different pain advocacy groups and organizations that influences prescribing physicians and other health care professionals.
“Defendants did not train their sales representatives regarding red flags that could indicate a ‘pill mill,’ including, for example, pain clinics with patients lined up out the door or patients passed out in the waiting room.
“Marketing strategies developed for Defendants’ sales force included utilizing a coupon program as a marketing tool for Duragesic and sample co programs, in which a sales representative delivered to a physician a ‘sample voucher for a box of 25mcg or 50mcg patches redeemed at pharmacy for a free 15-day trial of DURAGESIC.'”
If the case is upheld in the appeals process, it would set a precedent of accountability of pharmaceutical companies being held accountable for their marketing practices.