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The reputation of Johnson & Johnson, the world’s largest healthcare company, is in the dock in Oklahoma, where a judge is expected to rule on Monday over claims that it sowed the seeds of the US opioid crisis. It will be the first verdict on whether J&J’s sales of opioids and raw materials contributed to an epidemic described by the Oklahoma attorney-general in his opening remarks as the “worst man-made public health crisis in the history of this country and this state”. He is seeking up to $17bn to cover the cost of treatment, healthcare and criminal justice bills. J&J — best known for consumer products such as “no more tears” baby shampoo — owns the Janssen pharmaceuticals business that sold two prescription opioids. Until 2016, it also owned units that farmed poppies and supplied the raw material to opioid makers including Purdue Pharma. “J&J’s whole public persona and reputation is built as ‘family friendly’ and ‘we care about your health’. So they couldn’t really admit any of their products injure people,” said Carl Tobias, a law professor at the Richmond School of law. “They will appeal until they can’t appeal any more.” The verdict comes as negotiations are under way that could lead to a settlement which many have compared to the $206bn deal with tobacco companies in the 1990s. The defendants — up to 22 opioid makers, distributors and pharmacies — are trying to establish a class that could enter talks with the almost 2,000 municipalities pursuing them. Even if those cases settle, the majority of states will still fight for compensation from opioid makers.
What does opioid epidemic mean?
If J&J loses on Monday, it could open the door to more cases against the company and push others to settle sooner. While Purdue Pharma is considering bankruptcy, and fellow opioid maker Insys has already filed for Chapter 11, J&J’s much deeper pockets make it an attractive target for legal action. Shares in J&J fell in May when the trial opened. The potential legal bills from opioid cases come as the company is battling lawsuits that claim its talcum powder caused cancer, which the company denies. The talc cases that J&J have lost have had their verdicts overturned, or are awaiting appeal. If J&J wins, it may not be a true bellwether for the other cases. J&J’s opioid products only had a small market share in Oklahoma and the state is pursuing them purely on a “public nuisance” claim, whereas some other cases are relying on claims such as fraud. J&J — which has a reputation as a tough litigator — was the only company in the dock after Purdue Pharma, owned by certain members of the Sackler family, settled with Oklahoma for $270m and Teva, an Israeli drugmaker, settled for $85m. Elizabeth Burch, a professor at the University of Georgia School of Law said: “This is the first shot so everyone is looking at it to see how it goes, what it tells us about future lawsuits. But it is a pretty narrow case — it is just about J&J now Purdue and Teva settled out.” Legal experts are divided on the likely success of Oklahoma’s central claim that J&J’s sale of opioids and the raw materials to create opioids caused a “public nuisance”. The claim dates back to English common law and has been used, for example, to prosecute people who polluted a well, but it has not been used extensively in US states. A public nuisance claim was cited in the tobacco settlement, but it never went to court. Recently, a North Dakotan judge dismissed that state’s case against Purdue using the same legal strategy, but that sets no precedent for Oklahoma’s law.
What drugs are included in the opioid epidemic?
“Opioids” is a term for drugs that bind to opioid receptors in the body. They include everything from heroin and fentanyl to prescription pills like oxycodone (OxyContin®), hydrocodone (Vicodin®), codeine and morphine. More than 130 people in America die every day due to accidental misuse of these drugs–that’s one person every 11 minutes–and “the opioid epidemic” is the term used to describe this health crisis.
How did we get here?
In the 1990s, there was a massive marketing blitz from pharmaceutical companies for their new opioid pills. This coincided with a nationwide push to take patient pain more seriously.
Unlike something like blood pressure, pain is subjective. One person’s IT. IS. A. TEN! is another person’s ehhhhsix?, is another person’s I’M FINE, which isn’t to say pain should be overlooked–just a reminder that thoughtfulness in prescribing is necessary, especially when the prescription is highly addictive, like opioids are.
Early marketing materials from pharmaceutical companies made reassurances about their product, claiming their opioid pills were virtually non-addictive. However, heroin is one of the most addictive drugs on the planet and prescription opioids are chemically similar to heroin.
Meanwhile, illegal drugs flooded in–like heroin and illicitly-produced fentanyl–which people turned to once their prescriptions ran out, or they craved something stronger, or they needed something less expensive than prescription opioids. The National Institute of Drug Abuse reports nearly 80% of heroin users started with prescription opioids. And during that 1999-2016 time frame, overdose deaths from heroin increased 7x. And deaths from synthetic opioids like fentanyl increased almost 21x. Not typos.