OKLAHOMA CITY – Medical professionals, higher education officials, city executives and county commissioners, a child welfare organization and three prominent businessmen urged the Oklahoma Supreme Court to side with the state in its lawsuit against opioid manufacturers.
Cleveland County District Judge Thad Balkman ruled in 2019 that pharmaceutical giant Johnson & Johnson (J&J) created a public nuisance and should pay the State of Oklahoma $465 million to abate the opioid crisis it helped create. J&J appealed to the state Supreme Court to overturn the decision.
MEDICAL PROFESSIONALS CONTEND J&J TRYING TO SHIRK RESPONSIBILITY
The Oklahoma Hospital Association, the state Medical Association, the state Osteopathic Association, and the Oklahoma Nurses Association claimed in a “friend of the court” brief filed December 18 that J&J “pointed the finger at ‘rogue doctors’ and ‘pill mills’ as the cause of the opioid crisis in Oklahoma...”
However, the medical associations responded, the corporation’s “blame game” is a diversion to distract the court from “more than 100,000 pages of record evidence” of “the major role it played in causing Oklahoma’s opioid crisis.”
The trial in the case “took place after almost two years of fact-intensive discovery” in which a special discovery master “conducted dozens of hearings...” Additionally, Judge Balkman held more than 35 hearings before he conducted a bench trial that lasted more than eight weeks, during which 43 witnesses testified and more than 800 exhibits were admitted.
OPIOID CRISIS A ‘HEALTH DISASTER’
Communities throughout the U.S. are “in the midst of ‘one of the greatest tragedies of our time’, a ‘historic’ epidemic of rampant prescription opioid abuse fueling a ‘staggering’ ‘human toll’ and a consequent ‘extreme’ ‘economic burden on government at all levels’,” Oklahoma city and county officials asserted.
“The root of the epidemic is misconduct by J&J and other opioid manufacturers and suppliers, which have been characterized as ‘drug pushers operating under the patina of legitimate authority’,” the Oklahoma Municipal League (OML) and the Association of County Commissioners of Oklahoma (ACCO) wrote in a “friend of the court” brief.
Johnson & Johnson “repeatedly referred to its marketing efforts as ‘education’,” the businessmen and higher education officials noted. J&J “infected textbooks, medical journals, papers, speeches from doctors, and continuing medical education materials with their misrepresentations.”
J&J, which the trial court determined was “a cause of this opioid crisis, should be the one to fund” abatement efforts, declared banker Gene Rainbolt, energy industry magnate Harold Hamm, auto dealer Bob Howard, the State Regents for Higher Education, the University of Oklahoma and Oklaho- ma State University.
The opioid crisis is “the worst public health disaster” Oklahoma “has ever experienced,” they wrote in their “friend of the court” brief. “This crisis has ripped families apart, caused people to lose their jobs, their lives, their loved ones, and destroyed communities” throughout the state.
The Cheyenne & Arapaho Tribes, in a lawsuit filed two years ago in Canadian County against pharmaceutical manufacturers, lamented that their people “face a crisis that threatens to destroy their lives, land, and history like no other tragedy in history.” Opioid abuse is “devastating the people, babies, institutions, and resources of Indian Country...”
J&J “and its out-of-state hired guns – the Goldwater Institute, the U.S. Chamber of Commerce and the American Tort Reform Association, to name a few – have joined forces to try to scare” the Supreme Court “into believing that if J&J is held responsible for its role in creating the opioid crisis” in Oklahoma, the economic impact to Oklahoma businesses “will be bad.”
Balkman’s judgment against J&J “has been on the books for over 18 months,” the business and higher education leaders noted. The decision was publicized in newspapers across the nation and was aired on national television broadcasts. Nevertheless, J&J and its allies “cannot point to a single business – NOT ONE – that has left this state out of fear that Oklahoma courts have gone rogue.”
J&J and its supporters contend Balkman’s ruling has “transform[ed] public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability.” These “hollow scare tactics should be ignored,” the business and education leaders recommended.
DRUG ADDICTION ‘RIPS APART’ FAMILIES: OICA
Over the past two decades Oklahoma has consistently ranked “at or near the top of the nation in adverse childhood experiences,” the Oklahoma Institute for Child Advocacy (OICA) pointed out. The “traumatizing experiences” include “growing up in a household with someone experiencing a substance abuse or mental health problem.”
The opioid crisis has been “a major contributing factor” to those adverse experiences, the OICA wrote.
“To put it plain and simple, addiction rips families apart,” the OICA wrote. Parental opioid use disorder “leads to child death, child abandonment, and parental overdose.”
In 2007-12, a little over two-thirds of unintentional poisoning deaths involving children under the age of 18 involved a prescription opioid. A youth risk behavior survey conducted in 2017 found that roughly one in six of Oklahoma’s high school students reported misusing prescription opioids within the previous year.
A five-fold increase in neonatal abstinence syndrome (NAS) births occurred between 2001 and 2014, the OICA reported. NAS occurs when a baby is born with an addiction to drugs that have entered the infant’s system as a result of being in the mother’s womb.
In 2017, “upwards of 500 babies” whose mothers were in the state’s Medicaid system were born “suffering from the horrific symptoms of NAS.” Terri White, former commissioner of the state Department of Mental Health and Substance Abuse Services, testified at trial that the “vast majority” of NAS is caused by opioid use.
Higher rates of incarceration for individuals suffering from opioid use disorders “cost the state dearly,” Supreme Court Justices were reminded. Children are entering Oklahoma’s foster care system at “alarming rates” because of their parents’ opioid addictions, the OICA wrote.
“Oklahoma’s public nuisance laws are not bad for Oklahoma’s economy,” the Justices were told. “Forcing innocent, hard-working Oklahomans to pay for a public health crisis they didn’t create is bad for Oklahoma’s economy.”