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Trying a Killer


Trying a Killer

September 13, 2019

This article originally appeared in Goldberg Segalla’s Product Liability Playbook. Read the issue here.

Opioid-related lawsuits are on the rise, and they’re testing both old and novel theories.

The trial this spring and summer of Johnson & Johnson (J&J), which faced allegations under Oklahoma’s public-nuisance law for its alleged role in the opioid epidemic, was a zoom lens on a national crisis.

“One pill can kill, right?” attorney Brad Beckworth asked J&J Regional Business Director, Kimberly Deem-Eshleman, when she took the stand.

“Potentially,” Deem-Eshleman said.

“You’ve known that since the beginning,” said Beckworth. “There is an abuse potential.”

“And there’s a death potential, too.”

J&J’s trial, which played out over seven weeks in a Norman, Oklahoma, courtroom this spring and summer, led a state judge to rule August 26 that the company had intentionally minimized the dangers and oversold the benefits of opioids. The judge ordered J&J to pay the state $572 million. It was a ruling that could affect other such claims.

Though J&J’s was the first trial of a drug manufacturer over opioids, it almost certainly won’t be the last. There has been an explosion of lawsuits against manufacturers and others involved in the sale of opioids, and they’re testing both old and novel theories. While nuisance laws may normally conjure up thoughts of minor property disputes, opioid cases will test whether nuisance laws can take on more far-reaching issues.

The rapid rise in opioid cases is hardly surprising given   the costs associated with the opioid epidemic. According to the Substance Abuse and Mental Health Services Administration’s 2017 survey, 11.4 million Americans are misusing opioids. The economic impact is large. According to a 2013 article by the National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, the economic burden of opioids is $78.5 billion. Not only is there an economic burden from the opioid epidemic, but, according to the CDC, 130 Americans die each day from an opioid overdose.

The first opioid-related suit culminated in a partial settlement. The State of Oklahoma sued various parties, including Purdue Pharma, L.P., and J&J. Under the terms of the partial settlement, reached two months before the case was slated for trial, Purdue agreed to pay $270,000,000, including $75,000,000 that will be paid by Mortimer and Raymond Sackler, owners of Purdue. The settlement left J&J and subsidiaries as the sole remaining defendants, leading to that company’s trial this year.

Currently, there are 2,000 cases filed by various state and local governments  surrounding the opioid crisis. In fact, in late 2017, the Judicial Panel on Multidistrict Litigation consolidated federal cases concerning the prescriptions of opiate medication into multidistrict litigation. The first of these multidistrict litigation cases is set for trial on October 21, 2019. Given the magnitude of these cases, the court has allotted a significant amount of time for the trial, allowing the trial to proceed until December 13, 2019.

In the multidistrict litigation, Judge Dan A. Polster denied a motion to dismiss the nuisance causes of action. In denying the motion to dismiss, Polster relied on the Restatement (Second) of Torts. Specifically, he noted the following:

[T]he Restatement states that, at common law, public nuisances included interference with the public health…. Thus, ‘public health’ has traditionally been considered a ‘public right.’ Further, [i]t should be noted that, in some states, there are statutes defining a public nuisance to include interference with ‘any considerable number of persons,’ and under these statutes no public right as such need be involved.

While Polster refused to dismiss the nuisance causes of action, what remains to be seen is whether these claims will ultimately prevail at trial. The first test is the State of Oklahoma’s claims against J&J followed by the first bellwether MDL trial later this year. The results will have significant impact on future opioid cases. The outcome could lead to settlements or spur more litigation.

In any event, these first cases will impact hundreds, if not thousands, of cases with serious financial ramifications.

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