The pharmaceutical giant Johnson & Johnson ran a “cunning, cynical and deceitful scheme” to mass-market opioid painkillers that created the biggest drug epidemic in US history, Oklahoma’s attorney general alleged in closing arguments on Monday in the first major industry trial over the crisis.
The state attorney general, Mike Hunter, is suing Johnson & Johnson for $17bn, to fund treatment and offset other costs of the epidemic in Oklahoma.
Judge Thad Balkman is expected to deliver a verdict next month. It will be closely watched, with hundreds of other lawsuits against drug makers, distributors and pharmacy chains expected to come to federal court.
Balkman was presented with two very different versions of the role played by Johnson & Johnson in an epidemic in which more than 400,000 people have died over the past two decades.
Hunter placed the company at the heart of a conspiracy by the drug industry that caused opioid prescribing to surge far beyond any other country, with one prescription being written for every American adult at its peak, driving addiction and death.
Johnson & Johnson, he said, was a “kingpin” building a “billion-dollar pain franchise” because it made money from the entire length of the production chain, from a poppy growing operation in Australia that supplied 60% of the drug used in opioid manufacturing in the US through to the sale of its own high-strength painkillers.
“What is truly unprecedented here,” he said, “is the conduct of these defendants in embarking on a cunning, cynical and deceitful scheme to create and feed the need for opioids, engineer a mutant poppy to amplify the need they created, overstate the effectiveness and minimise the risk of these drugs, and to oversupply the addictive drugs that have devastated Oklahoma communities and wrecked countless Oklahoma families.”
The state said Johnson & Johnson joined other drug makers in funding a spider’s web of ostensibly independent medical organisations to influence health policy and pressure doctors to prescribe opioids with false claims that the drugs were less addictive and more effective in the long term treatment of chronic pain even though there was no clinical evidence for either assertion.
Hunter said Johnson & Johnson was a commercial rival but also a close collaborator with another major opioid maker accused of driving the epidemic, Purdue Pharma.
Purdue was convicted of a criminal offence in 2007 over illegally marketing its drug OxyContin as safer and more effective than it was. Hunter also sued Purdue but it settled out of court for $270m before the trial.
Another state lawyer, Brad Beckworth, said Johnson & Johnson brushed aside warnings from history and experts about the risks of addiction from opioids, and ignored the maxim that “if you oversupply people will die”.
“They engaged on a path to market opioid drugs as safer than they are and more effective than they are for everyday pain,” he said.
“They worked hand in hand with Purdue to make it happen. And then they engaged with all of their pharmaceutical industry brothers and all of the associations they funded and they coopted to spread this lie that has put us right where we are today.”
Johnson & Johnson sidestepped many of the specific accusations as it sought to persuade the judge the state was trying to make it a scapegoat. It urged Balkman to focus on the much narrower issue of whether the company’s drugs caused addiction and death in Oklahoma.
Johnson & Johnson’s lawyer, Larry Ottaway, said it was no more than a bit player that sold relatively few opioids in the state. He maintained that the company was addressing a desperate need from people living with debilitating long-term pain with medicines regulated by the Food and Drug Administration and even bought by Oklahoma’s health services.
“This is not a free market,” he said. “The supply is regulated by the government.”
Ottaway scoffed at the notion that doctors were influenced by the company’s marketing into prescribing opioids to people who did not need them.
“These are tough, tough decisions,” he said. “To treat patients in pain with opioids. To balance access against risk. There are not easy answers,” he said.
Balkman’s verdict is likely to have national repercussions. Johnson & Johnson is the first drug company to fight a lawsuit over the opioid epidemic instead of reaching a settlement.
Other firms facing a slew of legal actions by states, municipalities and counties across the US will be looking to see if the judge has been persuaded by Hunter’s argument that the firm was influential in driving up prescribing and therefore bears a responsibility for overdoses and deaths.
If he rules against Johnson & Johnson, that might discourage other opioid makers and distributors from fighting it out in court.
