Nation’s First Opioid Trial Promises Long Odds, High Drama
This story was updated to correct information about Oklahoma’s lawsuit against Big Tobacco.
NORMAN, Okla. — As tornadoes circled this quiet college town earlier this month, dozens of attorneys sharpened their strategies inside a modestly appointed courtroom that will host what is expected to be the longest and highest-stakes trial in Oklahoma history.
On the state’s side sat a small team of confident-looking young attorneys from Austin, Texas, alongside two senior Oklahoma City law partners for whom the battle against opioid drugmakers is personal. One lost a niece to an opioid overdose, and the other’s son, who had an opioid addiction, died in a motorcycle accident.
Far outnumbering them, a flock of dark-suited corporate attorneys representing Johnson & Johnson and Teva Pharmaceutical Industries, some from Oklahoma and some from out of state, sat tensely across the room.
An hour into a fast-paced series of requests and swift objections aimed at establishing ground rules for the upcoming trial, laughter shot through the courtroom as the parties finally agreed on one thing — where they would sit when the trial starts.
The hearing, one of many held by Cleveland County District Judge Thad Balkman in the lead-up to next week’s trial, served as a sort of dress rehearsal for opening arguments Tuesday in Oklahoma v. Purdue Pharma, the first public trial to emerge from roughly 2,000 U.S. lawsuits aimed at holding drug companies accountable for the nation’s raging opioid crisis.
It will be the first time Americans will hear the full scope of arguments on both sides in any of the lawsuits claiming that false and aggressive marketing by U.S. painkiller manufacturers caused an opioid overdose crisis that the U.S. Centers for Disease Control and Prevention says killed nearly 218,000 Americans between 1999 and 2017.
“I expect a very spirited trial,” said local attorney and author Bob Burke, who was asked by the court to manage public and press access to the proceedings. He said he’s already received 190 requests for press passes.
A live video feed will be available to the press, which also will have access to a blizzard of evidence and taped testimony, much of it from luminaries in the medical and public health fields.
A few blocks from the Cleveland County Courthouse, Montford Inn owner Phyllis Murray recalled the last time hordes of lawyers and journalists descended on this town.
“It was about 20 years ago,” Murray said. “A lawyer for the tobacco companies called and said he wanted to rent our entire place for several weeks. He told me ‘you’ll need a contract from us’ and he drew one up.”
That trial, set for the same courthouse, was one of dozens of state cases aimed at holding tobacco companies accountable for false marketing that led to the deaths of thousands of Americans.
In November 1998, a little more than a month before Oklahoma’s trial against Big Tobacco was to begin, the case ended, becoming part of a 46-state, $206 billion settlement still in force today. Murray said she got paid for the rooms even though, with the case over, none of the lawyers ended up using them.
A settlement proposal in Oklahoma’s opioid case is still possible from Johnson & Johnson, the world’s largest drugmaker, or Teva, the third-largest generic drugmaker in the world. In March, the lead defendant, Purdue Pharma, settled with the state for $270 million.
But Reggie Whitten, who is co-leading Oklahoma’s legal team with his partner Michael Burrage and Brad Beckworth from Austin, Texas-based law firm Nix Patterson, says the state intends to see this case through to the end.
Burrage, a retired Oklahoma federal judge and member of the Choctaw Nation, lost his 27-year-old niece to a drug overdose a decade ago. Whitten lost his 25-year-old son, who was addicted to opioids, in a 2002 motorcycle accident, and his nephew died from suicide four years later because of his addiction, Whitten said.
The nine-member Nix Patterson legal team helping them prepare for battle has been eating, sleeping and working together in their firm’s offices at Whitten Burrage law firm 20 miles away in Oklahoma City in recent months. The two firms started working together after the lawsuit — filed by Attorney General Mike Hunter June 30, 2017 — was conceived.
With refrigerators packed with Greek yogurt, fresh veggies and sparkling water, and makeshift beds set up in their offices, the team of 30-somethings from Nix Patterson has been putting in 18-hour days, seven days a week, for the last four months. The senior partners have been putting in long hours as well, and according to his spokesman, attorney general Hunter has been working right alongside them for months.
Granted, the state and its legal team already have made millions and stand to make millions, if not billions, more. Whitten, Burrage and Nix Patterson together received about $50 million in legal fees from the Purdue settlement in March.
As for future payouts, the attorney general has not said publicly how much the state wants defendants to fork over to repair the drug scourge he claims the companies caused. But in a May 3 legal document filed with the court, the state’s attorneys alluded to “a 17-billion-dollar Judgment, (or whatever the Court decides).”
Still, otherwise-aggressive attorneys general in other states and other hungry contingency-fee law firms appear to be taking a wait-and-see approach, said Richard Ausness, a law professor at University of Kentucky who has been following the opioid lawsuits.
“There’s a lot of freeloading going on out there: If a state doesn’t want to be bothered trying an opioid case, it can settle directly or hop on to a global settlement,” Ausness said. “Oklahoma is not taking that route.”
“The difference,” said Beckworth, “is that these lawyers have been affected personally. We have a moral responsibility to deal with this problem in Oklahoma. If we don’t take care of this now, it’s going to be too late.”
Six new states — Iowa, Kansas, Maryland, Pennsylvania, West Virginia and Wisconsin — filed lawsuits against Purdue this month, bringing to 46 the number of states suing the maker of OxyContin.
More than 1,600 cases brought by states, counties, cities, Native American tribes and other groups have been consolidated in a federal court in Cleveland, Ohio, where a trial is set for October.
Residents of Norman — home to the University of Oklahoma and more liberal than most of the rest of the Republican-dominated state — say the state has seen its share of man-made disasters.
Some residents can recall a 1986 leak at a uranium processing plant in the state, others mention frequent oil rig accidents and the 1995 bombing of the Alfred P. Murrah Federal Office building in Oklahoma City.
But when it comes to the opioid crisis, everyone is aware of the state’s addiction and overdose problem, and most say it began when doctors started prescribing too many pills for too many people. Town residents are split over whether drugmakers are to blame for it.
Nationwide, about two-thirds of Americans say they believe drug companies are responsible for the opioid crisis, although nearly as many hold drug users themselves responsible, according to an April poll by the Associated Press. Slightly less than half of respondents also blame doctors and dentists and about a third blame the government.
Oklahoma hasn’t been the hardest-hit state in terms of overdose death rates. In 2017, 770 people died of a drug overdose in the state, putting its death rate at 20 per 100,000 people, 11th-highest in the nation.
But its rate of opioid painkiller prescribing has been well above the national average. In 2015, Oklahoma doctors wrote 102 opioid prescriptions for every 100 residents, compared with 70 prescriptions per 100 people nationwide, making the state fifth in the nation for opioid prescribing.
Since then, the state’s prescribing rate has fallen and so have overdose deaths, said Andrew Kolodny, director of opioid policy research at Brandeis University in Massachusetts.
“The state has worked hard to reduce the number of pills prescribed to its residents, and as a result has seen one of the steepest declines in overdose deaths in the country.”
Unlike most other states, opioid overdose deaths in Oklahoma are overwhelmingly caused by prescription painkillers, not heroin or fentanyl.
In 2016, 322 Oklahomans died from prescription painkillers, 98 from fentanyl and 53 from heroin. Nationwide, more than half of all overdose deaths were from heroin and fentanyl.
So, how did Oklahoma, with only 1% of the nation’s population at 4 million residents, become the first to go to trial against the opioid industry’s biggest players?
Experts point to the state’s unique approach.
Instead of suing pill-makers under so-called product liability law — which has been the traditional approach to holding manufacturers, distributors, suppliers, retailers and others responsible for products that cause injuries to the public — the state is pursuing the case under Oklahoma’s public nuisance statute, explained Andrew Coats, dean emeritus of the University of Oklahoma’s law school.
Generally, public nuisance laws cover a wide variety of actions that threaten the health, safety, morals, comfort, welfare or convenience of a community. “But they’re typically used for things like shutting down a crack house that is annoying the neighbors or remediating a factory that’s emitting noxious fumes,” Coats said.
In April, a week after its settlement with Purdue, Hunter announced that the state had dropped five other civil charges, including Medicaid fraud, against the remaining defendants, in an effort to simplify the case and focus on its “central claim, abating the public nuisance caused by the companies’ decades-long fraudulent marketing campaigns.”
“When that happened, the case got much simpler. And the burden of proof got much lighter,” Coats said. “With product liability you have to sue on the basis that the product was faulty or there weren’t adequate warnings.
“With public nuisance, all those issues go out the window,” he said. “All you have to show is that the product was dangerous, that they sent a dangerous product to the state.”
But Coats said he thinks the state’s legal approach is risky. “To my knowledge, no one has successfully used a public nuisance law in that way.”
This month, a judge in North Dakota dismissed a case brought by the state against Purdue, saying that the public nuisance law did not extend to such claims. In January, a Delaware judge also dismissed public nuisance claims in the state’s case against Purdue, but allowed other claims, including negligence and consumer fraud.
District Judge Balkman didn’t do that.
“That was an amazing decision,” Coats said. But, he conceded that there is nothing in the statute that says the state can’t use the law in this way. “If you read the statute, it’s clear that when anyone does a bad thing that interferes with a significant number of people, it constitutes a public nuisance.”
Johnson & Johnson’s attorneys disagree.
In an April motion to dismiss the case, which was denied by Balkman in early May, the company’s attorneys argued that the state had misconstrued its public nuisance law.
“Oklahoma for more than a century has limited public nuisance to disputes involving property or public spaces — for example, to remedy an intrusion from an overgrown hedge,” John Sparks, Oklahoma counsel for Janssen Pharmaceuticals Inc. and Johnson & Johnson, wrote in an email to Stateline. “The State ignores this well-established law and now argues that public nuisance allows them to compel any party allegedly contributing in any measure to a social problem to fund all programs that state administrators dream up to address it. This is not and should not be the law. It threatens every company and industry doing business in the State of Oklahoma.”
On the state’s side, Beckworth said in an interview with Stateline:
“The case is simple. In Oklahoma we did not have an opioid problem prior to 1996. And then we did. The thing that happened in between is that Johnson & Johnson, Purdue and companies marketed opioids as being more safe than they were, and more effective than they were, and they aggressively targeted every aspect of Oklahoma life from the doctors to the pharmacies to the patients. That’s what happened.”
Oklahoma has even gone so far as to describe Johnson & Johnson, the multinational manufacturer of drugs, medical devices and popular brands of baby shampoo and baby powder, as the “kingpin” behind the state’s opioid crisis.
Hoping to unseal millions of pages of company documents, Oklahoma’s lawyers contended in a February filing that Johnson & Johnson did more than push its own pills — it also profited from the prescription opioid crisis through its ownership of a poppy producer in Australia (Tasmanian Alkaloids) and a U.S. importer of raw materials used to make opioids (Noramco). As of this week, Balkman had not agreed to that request.
Judge Balkman has said he wants the trial to close July 26. But he called that date “aspirational.”
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