Expert Network: Oklahome Opioid Trial Result: a Pig in a Poke?
by Andrew S. Pollis, Professor, Case Western Reserve University School of Law
We now have the long-awaited result in the Oklahoma trial against Johnson & Johnson (J&J). While the State of Oklahoma convinced the trial judge that J&J engaged in a public nuisance and that it must now pay $572 million to abate, the amount of the judgment is nowhere near the $17 billion the State of Oklahoma had requested to abate the opioid crisis over the next few decades.
So what does all this mean? Maybe not as much as media accounts are suggesting.
To begin with, the size of the award is being reported as one of the biggest in history. But most court watchers and investment advisors expected the amount of the award to be significantly higher.
The decision was meticulous in its discussion of the facts. It sifted through the testimony of 42 witnesses and 874 exhibits and chronicled J&J’s role in increasing the market for opioid medications by minimizing its addictive properties and encouraging doctors to focus more on managing patients’ pain. That evidence, the court found, supported a finding that J&J had engaged in a public nuisance that caused the opioid crisis.
But the court failed to address several important legal points J&J had argued. Among these are the suitability of the judicial system to redress public-health crises, the absence of evidence that any Oklahoman became addicted to a J&J-manufactured product, and the question whether it was proper, even assuming liability, to hold J&J liable for the entire abatement plan given its relatively low opioid market share in Oklahoma.
The decision also leaves a few questions unanswered. Must J&J pay the entire $572 million, or does it get an offset for the $325 million that Purdue Pharma and Teva have already paid? And is the $572 million—which represents abatement costs only for the first year of the State’s abatement plan—the end of the road, or may the State come back and pursue additional abatement costs for the second year and beyond? The judge suggested, when delivering his decision to a packed courtroom and television cameras, that he expected the parties to come back to court for more guidance, and these are among the questions he may yet have to answer.
In the meantime, J&J has vowed to appeal. That process alone could take a few years. And it can avoid paying the judgment if it posts a bond, capped in Oklahoma at $25 million.
And despite media accounts that this result is a bellwether that will influence the much larger MDL in Cleveland, Ohio, there is little reason to think that’s true. The differences between the cases are numerous:
State v. federal court
Judge v. jury trial
Oklahoma law vs. Ohio law (for the bellwether trial in October)
One defendant (J&J) vs. the entire industry (other than Endo, which has settled)
