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Oklahoma Judge Orders Drugmaker To Pay For Its Role In Opioid Crisis

DAVID GREENE, HOST:

In Oklahoma, a judge has ordered the pharmaceutical giant Johnson & Johnson to pay $572 million to help address the opioid crisis in the state. In his ruling yesterday, County Judge Thad Balkman said the drug maker disseminated false, misleading and dangerous marketing campaigns that led to exponentially increasing rates of addiction overdose deaths. The drugmaker rejects the ruling and plans to appeal.

And Sabrina Strong is an attorney representing Johnson & Johnson in this case and joins me on the line this morning. Thanks so much for taking the time for us.

SABRINA STRONG: Of course. Happy to join you.

GREENE: I know you have argued that Johnson & Johnson did not break the law here. You're planning an appeal. I just wanted to start with one of the core things the judge said. I mean, did the company have a marketing campaign saying that there was a low risk of abuse and low danger in prescribing opioids?

STRONG: No. The marketing that is done with respect to these medications is entirely governed by and consistent with FDA regulations. And so it's important to understand that when folks are out speaking about the drug, they are doing so consistent with the risks and benefits that are described in the FDA-approved label.

GREENE: OK. But even if it was done in what the company believes was within the confines of the FDA label, I mean, there was evidence presented in the trial of sales reps basically downplaying the concerns of physicians about the addictive qualities of opioids. Even if you think that this was within the FDA guidelines and are making that argument, was that happening?

STRONG: No, I don't believe that the evidence was that at trial. And what we do know is there was not one doctor - not one Oklahoma doctor was brought to the stand to say that they were misled by anything a sales representative said and that it impacted a prescribing decision and caused harm to a patient - not one Oklahoma doctor. There was not one patient or family member that testified at trial about any abuse or misuse related to a Johnson & Johnson medicine. There's simply no evidence to support those findings.

GREENE: So some of the memos that came up in court that basically showed sales reps talking about addictive - that these drugs not being as addictive. I mean, you're saying they were misinterpreted by the judge here?

STRONG: There was - I think that misstates the evidence.

GREENE: OK.

STRONG: There was no evidence. It's very easy to make a broad-brush statement about this and to make an allegation, but we actually have to look at the evidence that was presented at trial. At no time was there evidence that anybody said that these drugs were not addictive. There are black box warnings on these medications, and they absolutely talk about the risk of addiction with these medicines. There's no evidence to the contrary in the case whatsoever.

GREENE: Johnson & Johnson, as I understand it, hired the big consulting company McKinsey to look for opportunities to sell more of these drugs. McKinsey had a strategy to keep patients on some of these drugs, even if they had an adverse effect, because they felt that they were helping with pain. And that is one of the issues that came up. Do you deny any of that - I mean, that McKinsey was there coming up with a strategy to sell more of these opioids?

STRONG: No. I think what you need to understand is when you are dealing with medicines, that you're trying to reach certain patients, those patients who need the medicines. And what this company is focused on is finding medications for unmet patient needs. And so the strategy is - is to find those patients, find doctors who are working with those patients and to reach those doctors so that they can have access to the medications that they believe are appropriate for their patients.

Remember - these are prescription medicines. Nobody can access these without a prescription from their doctor. And that's a very individualized decision. It's between the patient and the doctor to determine what's best for that patient. And that is the only way in which anyone can lawfully obtain these medications.

GREENE: Well, you're bringing up, I mean, a question that might come up as this goes forward. I mean, are you basically saying that if a doctor prescribes these drugs and if they have been approved by the FDA, that relieves the companies of any accountability or responsibility in a crisis like this?

STRONG: I think the question is, was there something that the company did that was wrong - for example, misleading marketing? And if so, did that impact any prescribing decision? Did a doctor rely upon it, and did it cause harm? The facts of this case are no to all of those questions. There is no evidence that there was anything that was misleading.

You started out by asking me a question about whether there was a campaign to mislead. And what I explained is that the FDA labels sets forth both the risks and the benefits of the medication. And everything with respect to the evidence at trial demonstrated that the sales representatives were trained extensively on these issues, extensively on compliance - and that the evidence is that when they spoke with doctors, they spoke about both the risks and the benefits of the medications. And it's up to the doctor to decide who is the appropriate patient for these medicines and to ultimately write that prescription for any given patient.

GREENE: So it's possible that a sales rep might have said, look at the risks and benefits. This could be addictive but not so addictive that you shouldn't prescribe it for pain. I mean, that might have been one of the things that the judge was looking at in talking about what he described as a marketing campaign.

STRONG: I was at the trial every single day, and there was no evidence to that effect.

GREENE: What next now? I mean, is - are you a hundred percent going forward with appeals, or is the company considering settling at some point?

STRONG: Listen. I mean, as a matter of fact or law, there is no basis for this decision. You've asked me several questions about the facts, but there are also significant legal issues here. This is really a radical departure from a century of case law in Oklahoma. Nobody has ever utilized public nuisance in this way, and so this decision is fundamentally unfounded as a matter of law and fact. And there's absolutely no basis for liability.

So yes, I think it's fair to say that we are very much focused on preparing appellate papers and look forward to having these issues considered by the Oklahoma Supreme Court.

GREENE: Yeah. I wanted to ask you about the public nuisance laws. I mean, just the name sort of states what the intent is of lawmakers, which is to protect the public good. You've argued that a law like this is simply not applicable in coming after a company like Johnson & Johnson in terms of liability. Explain to our listeners why a law that's supposed to protect the public good would not be applicable here.

STRONG: This is a law that is intended - in Oklahoma, for over a century, the courts have made clear that this is about property disputes, when someone misuses their property and causes harm to another. That's what we're talking about. And the remedy that's available under public nuisance is to abate that nuisance - to stop the conduct. That's not what this case is about, and that's not what plaintiffs are seeking here. The state is seeking damages here.

So this is a law that's completely inapplicable. There are decades of case law, certainly, that have been developed in tort and product liability, and the state has completely jettisoned that case law and tried to focus on public nuisance, something that has never been done before.

GREENE: But aren't these millions of dollars used for abatement? I mean, these were not damages that the company's paying. Or did I misunderstand that?

STRONG: These are damages. I mean, abatement would be asking the company - the judge could order the company to stop engaging in certain conduct. That is not what's at issue here. The ruling says nothing about what J&J ought to stop doing or do. The ruling is ordering the company to pay money for the harms that the state believes it has suffered and that they need to address the harms that the state has suffered.

Look. This is a serious public health crisis, and it's something that needs to be addressed. But litigation is not the answer. We need public and private partnerships. We need collaboration. We need people to come together to address this serious public health crisis.

The company's medicines here - I think it's really important to understand that these medicines were rarely diverted, rarely abused and, in total, made up less than 1% of all the opioid pain medications prescribed to patients in Oklahoma. And that's true throughout the country, as well. So this is a situation where liability and litigation in courts, this is not the answer.

GREENE: Attorney...

STRONG: This is not what we ought - how we ought to be addressing this very, very serious public health crisis.

GREENE: Sabrina Strong is an attorney defending Johnson & Johnson in that legal action brought by Oklahoma. Thanks so much for your time. I really appreciate it.

STRONG: Of course. Thank you for having me.

GREENE: I want to turn briefly to Jackie Fortier. She's a reporter with public media initiative StateImpact Oklahoma who's been listening in. And Jackie, she's downplaying how many of these drugs have been abused in Oklahoma and elsewhere. Can you give me the larger context here?

JACKIE FORTIER, BYLINE: Yeah. I mean, this is a lot of what we heard during the trial. You know, her message this morning was that the drugs the company sold were approved by federal regulators and that they can't be tied to any deaths in Oklahoma. But I did think it was really interesting that she mentioned that there were no doctors in Oklahoma that had testified that they had been misled by the company's marketing of their opioids. That's true, but there were certainly doctors from other states who had treated people in Oklahoma who testified during the trial that they had been misled about the addiction risk of opioids. And the judge even referenced their testimony in his decision.

GREENE: And Jackie, one other thing that came up in that conversation - she kept calling this money damages that Johnson & Johnson has to pay. I thought it was money that is going to be spent to address the opioid crisis. Is that - is there - there's a distinction there, right?

FORTIER: Yeah, there is. I've had it explained to me by legal scholars that these are not damages because it's a public nuisance claim. That instead, the way that this money was calculated was that it would go towards treatment. It's not what the state has spent on the opioid crisis. But rather, it's an amount of money that would help fix it.

GREENE: Jackie Fortier reporting for the public media initiative StateImpact Oklahoma, covering this case. Thank you so much, Jackie.

FORTIER: Thanks. Transcript provided by NPR, Copyright NPR.