Opioid trial begins this week

Caleb Slinkard The Norman Transcript

NORMAN (TNS) — The state of Oklahoma’s civil lawsuit against two groups of opioid companies began Tuesday in downtown Norman.

The trial is expected to take several months as Oklahoma Attorney General Mike Hunter’s office argues the companies are financially liable for their contributions to the state’s opioid crisis to the tune of billions of dollars. The defendants dispute that and just about everything the state asserts. Both sides will argue their cases in front of Cleveland County District Judge Thad Balkman.

This is the first major opioid trial to make its way to court, and it will impact thousands of other opioid trials across the country. Here’s what you need to know before trial begins:

• The state’s case: The state is claiming opioid manufacturers created a public nuisance — the opioid crisis — by aggressively marketing opioids, downplaying their risks, creating a market for opioids in Oklahoma where none had existed and flooded this market with opioids.

In filing a claim underneath Oklahoma public nuisance statutes, the state is treading relatively new ground, as public nuisance lawsuits in Oklahoma almost always involve property. Also, the state is arguing not that the opioid companies owe Oklahoma damages, but rather that the companies helped create this crisis, and therefore have a responsibility to fix, or “abate” the nuisance. According to the state’s statement of facts in the pretrial conference order, it will cost Oklahoma between $12.7 billion and $17.5 billion to abate the nuisance over the next several decades.

“By causing a paradigm shift, Defendants’ actions ultimately led to liberal over-prescribing of opioids and, thus, an oversupply of opioids,” read the state’s summary. “In other words, the result of Defendants’ actions was the opioid crisis — a crisis of opioid addiction, abuse, overdose, and death.”

The state is also arguing that while these defendants are not solely responsible for the opioid crisis, Oklahoma can hold them liable for the entire cost of abating it.

• The defendants: The state filed the lawsuit against a variety of companies, related companies and their subsidiaries. One of those defendants, Purdue Pharma, settled with the state for $270 million in March. Purdue, the manufacturer of OxyContin, is now exploring bankruptcy, according to multiple media reports.

The remaining defendants are gathered into two groups: Johnson & Johnson/Janssen Pharmaceuticals (the J&J defendants); and Teva Pharmaceuticals USA and Actavis (the Teva defendants).

The J&J defendants manufactured and marketed three opioid products. Two subsidiaries of J&J and Janssen — Noramco and Tasmanian Alkaloids — sold active pharmaceutical ingredients (APIs) to manufacturers.

“Janssen is confident it acted responsibly in the marketing and promotion of its products. Its FDA-approved medicines helped people in pain and Janssen successfully worked with regulators to prevent diversion and abuse of its opioid medications,” John Sparks, Oklahoma counsel for Janssen Pharmaceuticals, Inc. and Johnson & Johnson, said.

“Janssen will continue to defend itself, because the claims raised against it in the Oklahoma litigation have no basis in fact or the law – and that will be made clear during trial. The state’s unsubstantiated and unsupported legal theory poses a threat to businesses throughout Oklahoma.”

The Teva defendants and related Actavis defendants manufactured and/or sold generic and unique opioids in Oklahoma.

The defendants assert, among other things, that they acted legally in producing opioids and/or APIs in compliance with federal guidelines and under federal regulation; their products, which met a legitimate, medical need, made up a small portion of the Oklahoma opioid marketshare; Oklahomans had to obtain opioids via prescriptions from physicians, and if they obtained them illegally, the defendants’ are not responsible; the state cannot prove that Oklahomans overdosed or were addicted to the defendants’ drugs; the state cannot prove the defendants improperly marketed their products; and Oklahoma’s public nuisance laws cannot be used this way.

• The trial: The trial will begin at 9 a.m. Tuesday in the northeast corner of the third floor of the Cleveland County Courthouse. More than 150 media members have been credential to cover the trial, and the trial will be livestreamed by the Court View Network — a livestream that can be accessed for free by credentialed members of the media and at a cost for non-media members.

As defendants have waived their right to a jury trial, the final decision rests on Balkman’s shoulders. At the end of the trial, he will make a finding — the bench trial version of a jury verdict. There is a tentative end date for the trial of July 26.

Other than a few days between Tuesday and the end of the trial, the trial will go on from 9 a.m. to 5 p.m. Monday through Friday.