Johnson & Johnson wants Oklahoma opioid case tossed

'Fireworks' expected Monday

By Wayne Drash, CNN
Shutterstock via CNN

(CNN) - Drugmaker Johnson & Johnson has asked the judge presiding over the historic Oklahoma opioid trial to toss the case, saying the company has been made a "scapegoat" and blasting the state's effort as a "slew of illogical, legally defective theories far outside the bounds of Oklahoma precedent."

Cleveland County District Judge Thad Balkman will give both parties an hour Monday morning to argue their case before deciding whether to throw it out or to allow it to proceed.

"One would expect vigorous arguments, somewhat akin to a late July 4th fireworks display," court spokesman Bob Burke said.

Johnson & Johnson on Wednesday filed its motion for a directed judgment, which is a move seeking dismissal on the grounds the state failed to produce enough evidence to support its case. The drugmaker has consistently denied any wrongdoing, saying it followed the law and acted appropriately in its marketing and promotion of opioids.

Oklahoma Attorney General Mike Hunter accused Johnson & Johnson and its subsidiaries of creating a public nuisance with its alleged role in the opioid crisis, costing the state billions of dollars and destroying thousands of lives. The state has presented a $17.5 billion abatement plan over 30 years to fix the opioid epidemic.

John Sparks, Oklahoma counsel for Johnson & Johnson and its subsidiary Janssen, rejected all such allegations, saying the state is trying to hold Johnson & Johnson and Janssen liable for damages "without offering any evidence that the companies were the cause of Oklahoma's opioid crisis."

If Balkman sides with Johnson & Johnson, the case would be over.

"Now that the State has formally rested its case, we have filed a motion that respectfully requests the Court find in favor of defendants because, as detailed fully in the motion, the State does not have sufficient evidence to prove its claims," Sparks said.

"By seeking to impose liability on a single defendant for a complex social crisis that has taken a tragic toll on this country, the State has put this court in an untenable position," Johnson & Johnson said in its filing. "The State has used this trial -- and a slew of illogical, legally defective theories far outside the bounds of Oklahoma precedent -- not to 'abate' anything but to find a scapegoat."

The company said the state of Oklahoma was only after one thing: "Janssen's pocketbook -- not its products."

 

Attorney general: Johnson & Johnson must 'clean up the mess they made'

 

It is not uncommon in a civil bench trial for a defendant to file such a motion to end the trial.

The trial, now in its seventh week, will proceed if the judge rejects the motion. Last week, the judge said Johnson & Johnson informed him it could rest its case as early as this Friday, depending on how long witnesses take on the stand.

In a statement to CNN, the Oklahoma attorney general remained steadfast, saying the facts were clear and that Johnson & Johnson remains in denial about its role in the opioid epidemic.

"Despite the state's evidence and even as the company's witnesses continue to corroborate our case, Johnson & Johnson still refuses to take responsibility for the opioid epidemic they created," Hunter said.

He pointed to the fact that Johnson & Johnson once owned two subsidiaries in Tasmania that allowed it to supply more than 60% of all active ingredients for opioids manufactured and sold in the United States, including the blockbuster painkiller OxyContin made by Purdue Pharma.

"Despite the damning evidence against the company, it continues to blame Oklahomans in its shameful attempt to wash its hands of the problem," Hunter said. "To this point, we have heard zero reasons as to why they are not liable and why they shouldn't have to clean up the mess they made."

In its legal filing, Johnson & Johnson acknowledges the two former subsidiaries, Tasmanian Alkaloids and Noramco, produced the raw materials for opioid prescription painkillers made by other companies, but argues it should not be held responsible on legal grounds.

"The theory fails because Tasmanian Alkaloids and Noramco sold their products under strict international and federal regulatory systems," Johnson & Johnson said.

The company went on to say the Drug Enforcement Administration authorized the sales as "part of a comprehensive statutory and regulatory scheme designed to ensure reliable supplies of medically necessary drugs."

"Federal law preempts the State's frontal assault on that system," Johnson & Johnson said.

Brad Beckworth, one of the state's lead attorneys, said he was looking forward to excoriating Johnson & Johnson's motion in court: "You've got the largest supplier in the history of the world of these products, who was a major supplier of drugs in the state of Oklahoma, who had 150,000 targeted calls to our doctors and they are sitting there saying they bear zero responsibility -- none."

"That is gross and offensive," Beckworth said in a phone interview. "There's a thing about liars: When you confront them with the truth, you can lie no more. And that's exactly what's happened in this case."

Beckworth described Johnson & Johnson's motions this way: "What Johnson & Johnson has done is just regurgitate a half dozen briefs they already lost."

"It's a complete distortion and bastardization of what Oklahoma law is by a company that wishes it was in an East Coast federal court," he said.

 

Johnson & Johnson says 'no basis' for it to pay billions

 

In its filing, Johnson & Johnson blasted the state for what it calls an "about-face" which it identifies as going from focusing initially on Purdue before turning its focus on Johnson & Johnson and its subsidiaries. The state reached a $270 million settlement with Purdue ahead of trial.

"Its solution has been brazen," Johnson & Johnson said. "To lay the entire opioid abuse crisis at Janssen's feet, the State has asked this Court to discard one settled legal protection after another and impose liability far beyond what any court, anywhere, has ever allowed."

The drugmaker also sharply criticized the state for pursuing its nuisance statute and scoffed at the state's $17.5 billion plan to solve its opioid epidemic.

"The abatement plan represents runaway bureaucratic ambition, unchecked by legislative and executive constraints that typically impose accountability on government plans," Johnson & Johnson said. "It relies on the say-so of State employees who could not explain what they mean by abatement, and equivocated on whether the plan will work within its prescribed timeframe.

"That is not proof of 'abatement' by a preponderance of the evidence. And it is no basis to make Janssen pay billions of dollars to the State."

The state rested its case last week after calling 28 witnesses over six weeks. The state's mental health commissioner, Terri White, was the chief architect of the abatement plan and testified it is "absolutely necessary and reasonable."

"If we do not abate it, more Oklahomans will die," she said.

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