Volume 2020-2021 - Issue 2 Oklahoma v. Purdue Pharma: The Beginning of the End?

Purdue Pharma (hereinafter relivers to OxyContin. In other “Purdue”) first introduced OxyContin words, Defendant Purdue to the market in 1996, initially treated the marketing of a intended for cancer pain and end-of- Schedule II controlled life care. However, according to the substance as if it were peddling Complaint, it was not long before paper products.6 Purdue began pushing the drug on Co-defendant, Johnson & Johnson, doctors for ailments and pain other which contracted with poppy farmers than its original intended use. While in Tasmania, is estimated to at one doctors have discretion to prescribe point have supplied 60% of the opiate medications beyond their approval ingredients that drug companies Sarah F. Dooley, Esq. (otherwise known as “off-label”), used for opioids. 7 J a n sse n Duffy + Fulginiti drugmakers, such as the defendants Pharmaceuticals (hereinafter in the lawsuit, are much more “Janssen”), a J&J subsidiary, makes “The most depraved criminals are limited and may only market their its own opioids – including a pill often the dispensers of these habit- products for the specific ailments whose rights it sold in 2015 for over forming drugs.”1 Oklahoma Attorney approved by regulators.2 The $1 billion (Nucynta) and a Fentanyl General, Mike Hunter, started his Complaint focused on the illegal patch that it still produces.8 The 134-paragraph Complaint against marketing of the opioids in which lawsuit honed in on the marketing of drug manufacturers that included Purdue and its co-defendants actively Nucynta, alleging that Janssen9 Purdue Pharma, Cephalon, and engaged. Purdue allegedly made unsubstantiated Johnson & Johnson, with a century- implemented training that went so representations that the medication old quote that succinctly and clearly far as to instruct sales was appropriate for broader pain set out what direction the lawsuit representatives to tell doctors conditions than indicated.10 would take before even alleging a OxyContin “is virtually non- single cause of action. Filed in addicting.”3 The Complaint also chronicled how Cleveland County, Oklahoma, on the Purdue and Janssen defendants Purdue instituted a bonus system for June 30, 2017, the OK v. Purdue provided false scientific support for its sales representatives, designed to Pharma, et al. lawsuit surprised and their misrepresentations by paying encourage “maximum OxyContin shocked drug manufacturers, doctors, doctors, which the Complaint prescriptions” and in 2001 paid out patients, and lawyers alike. The referred to as “Key Opinion $40 million in bonuses.4 The State of Oklahoma finally did what Leaders,” to publicly advocate opioids company began targeting primary other states had only dreamed of – as an effective treatment for chronic care physicians rather than pain publicly air the misconduct and pain while downplaying the risks of specialists.5 The Complaint alleges: “dirty laundry” of drug addiction and abuse.11 “By operating

manufacturers who had been through [Key Opinion Leaders], Defendant Purdue also relied pushing their highly addictive Defendants added perceived on several types of branded opioids for decades. But would the legitimacy and/or impartiality to items to promote its products lawsuit fall flat on its face? Or had their misrepresentations regarding including hats, toys, coffee the opioid crisis become such a opioids.”12 The Complaint referred to mugs, and even a pen that had national epidemic that drug two Key Opinion Leaders by name – a conversion chart attached to manufacturers would finally be Dr. Russell Portenoy, former it allowing a physician to forced to change their business Chairman of the Department of Pain calculate dosages to convert a practices? Medicine and Palliative Care at Beth patient from other opioid pain Israel Medical Center in New York, opioids by downplaying the risks of were consistent with FDA-approved and Dr. Lynn Webster, former Chief addiction and abuse, overstating the labeling and labeling decisions. Medical Director of Lifetree Clinical efficacy, and misrepresenting the Judge Thad Balkman denied the Research, a pain clinic in Utah.13 medical necessity of the opioids.19 Motion and found the State had Both Drs. Portenoy and Webster sufficiently stated its claims except have since acknowledged several of Count D, Public Nuisance, alleged for the cause of action under the the misrepresentations they made the opioid epidemic, created by the Oklahoma Consumer Protection Act, with regard to opioids and addiction defendants, constituted a public which he dismissed with prejudice.24 were false and unsupported.14 nuisance in that it affected entire Thereafter,Volume the 2019 parties-2020 entered - Issue into a3 communities, neighborhoods, and Stipulation extending the And of course the Complaint people. 20 Fraud (Actual and defendants’ Answer date, and described the massive profits Constructive) and Deceit, Count E, limiting the defendants’ ability to OxyContin generated for the indicated the defendants made false remove the case to Federal Court.25 defendants, including a significant representations to healthcare Despite the Stipulation, Purdue allocation of public funds. Sales of providers working for Oklahoma and/ removed the action, arguing that OxyContin alone have reportedly or omitted material facts regarding federal question jurisdiction existed generated more than $35 billion in the risks, efficacy, and medical because the State’s answer to an revenue for Purdue since 1996.15 necessity of the opioids, which Interrogatory revealed that the From 2007 to 2017, Purdue assertions defendants knew were lawsuit involved state law claims submitted over 95,000 prescriptions false, were made recklessly without inextricably tied to substantial for reimbursement to the Oklahoma knowledge of the truth, and/or had disputed federal questions.26 The Health Care Authority, on behalf of no reasonable ground for believing State filed a Motion to Remand, the Oklahoma Medicaid system, for such assertions.21 Lastly, Count F, arguing the Court had already ruled the opioids manufactured by Unjust Enrichment, alleged: the claims did not implicate federal Purdue.16 The Oklahoma Health issues when it denied the Motion to Care Authority, as of June 2017, had For years, Defendants have Dismiss.27 U.S. District Judge Vicki paid just shy of $50 million for the peddled their opioids on the basis Miles-LaGrange remanded the Purdue opioids.17 of false claims regarding the action, noting the case did not satisfy

drugs’ addictiveness and the Grable28 principles for federal Tired of seeing the havoc and toll the effectiveness and, in doing so, question jurisdiction and agreeing opioid epidemic had wreaked on his have siphoned millions of dollars with the State that the claims did not state, AG Hunter filed the lawsuit in from the State’s coffers into their “necessarily raise” a federal issue.29 June 2017, and promptly sent drug corporate bank accounts. While manufacturers into a frenzy and many Oklahomans’ lives are Back in Oklahoma State Court, the seized the national public discourse. ravaged by opioid abuse and case marched on, with a trial date Included in the Complaint were addiction, Defendants have lined slated for May 2019. Then in late causes of action for Medicaid False their pockets with State monies March 2019, the unthinkable Claims, Medicaid Program Integrity, paid for opioid prescriptions that, happened. Purdue agreed to settle Consumer Protection, Public but for Defendants’ deceptive the claims against it for $270 million. Nuisance, Fraud (Actual and marketing scheme described The settlement came just one day Constructive) and Deceit, and Unjust herein, would never have been after the Oklahoma Supreme Court Enrichment. Counts A and B accused prescribed.22 denied Purdue’s emergency appeal the defendants of submitting false for a delay of the trial date.30 The claims to the state Medicaid The “Prayer for Relief” included monster settlement faced backlash program. Count C, brought under the requests for actual damages, and criticism from Oklahoma Oklahoma Consumer Protection Act, penalties, injunctions, punitive legislators who argued the money alleged the defendants engaged in damages, attorney’s fees, and a should have been deposited into the deceptive trade practices and made “disgorgement of defendants’ ill- state’s treasury where lawmakers misrepresentations and omissions in gotten gains,” among other things.23 would have then determined how it marketing their opioids that deceived was spent. Instead, AG Hunter and or could reasonably be expected to The defendants predictably filed a Purdue agreed that $200 million of deceive or mislead consumers.18 In Motion to Dismiss based on the settlement would go directly that regard, the defendants were preemption, arguing there could be towards establishing a National accused of knowingly making false or no liability as a matter of law for Center for Addiction Studies and misleading representations as to the alleged past misrepresentations in Treatment at Oklahoma State characteristics, ingredients, uses, marketing because those statements University. The remaining $70 and benefits of their respective million was distributed to local Balkman should maintain 8 Id. governments and covered legal fees. jurisdiction over the case and 9 The Complaint referred to Janssen annually review whether the public Pharmaceuticals and Johnson & Johnson Days before the May 2019 trial was nuisance has been resolved, and collectively as “Janssen Pharmaceuticals.” set to begin, Teva Pharmaceuticals Johnson & Johnson arguing that the 10 See Complaint, ¶53. settled its claims with the State as specific opioids manufactured by the 11 Id. at ¶58-59. well for $85 million.31 As such, the company could not have single- 12 Id. at ¶59. case proceeded against Johnson & handedly caused Oklahoma’s high 13 Id. at ¶60-61. Johnson, and in August 2019, rates of addiction and deaths from 14 Id.Volume at ¶62. 2019-2020 - Issue 3 following a two-month bench trial, overdose.37 15 Id. at ¶21. Judge Thad Balkman ordered J&J to 16 Id. at ¶35. pay $572 million. The OK v. Purdue Pharma, et al. 17 Id. lawsuit was in the nation’s spotlight 18 Id. at ¶105. 19 Id. at ¶107. The sole cause of action against for a number of reasons: it was novel, 20 Id. at ¶118. Johnson & Johnson stemmed from a the stakes were huge, and it was 21 Id. at ¶122. public nuisance law – typically personal. In 2020, it would be 22 Id. at ¶131. applied in cases where something difficult to find a single person who 23 See Complaint. interferes with a right common to the has not been touched by the opioid 24 Judge Thad Balkman Order general public, such as roads, crisis in some way or another. Nearly (12/06/17). waterways, or other public areas. 400,000 people in the United States 25 U.S. District Judge Vicki Miles Order Oklahoma’s public nuisance statute died of opioid overdoses between (08/06/18). was considered broad, and the state 1999 and 2017.38 While Purdue and 26 Id. at 3. 27 Id. at 4. argued J&J substantially interfered Johnson & Johnson were forced to 28 Grable & Sons Metal Prods., Inc. v. with public health in its role in the pay into addiction treatment and Darue Eng’g & Mfg., 545 US 308 (2005). opioid epidemic.32 Judge Balkman research as part of the landmark 29 U.S. District Judge Vicki Miles Order concluded that Oklahoma’s nuisance award, the lawsuit’s lasting effects (08/06/18), page 9. law extended beyond the regulation on the opioid crisis remains to be 30 Bebinger, Martha, “Purdue Pharma of real property, and encompassed seen. Doctors, patients, and the Agrees to $270 Million Opioid Settlement the corporate misconduct of the public know the highly addictive With Oklahoma,” NPR (March 26, 2019). Johnson & Johnson defendants.33 qualities of OxyContin and other 31 Fortier, Jackie, “Here’s What Specifically, he noted that the State opioids, and sales representatives Happened to $829 Million Oklahoma Was Awarded To Treat Opioid Addiction,” had “sufficiently shown that would be foolish to suggest KGOU (January 16, 2020). [Johnson & Johnson] pervasively, otherwise. AG Hunter paved the way 32 Hoffman, Jan, “Johnson & Johnson systemically and substantially used and provided a blueprint for other Ordered to Pay $572 Million in real and personal property, private jurisdictions to follow in combating Landmark Opioid Trial,” The New York and public, including the public the opioid epidemic. More than 1,600 Times (August 26, 2019). roads, buildings and land of the State lawsuits have been consolidated in a 33 Judge Thad Balkman Order of Oklahoma, to create this federal court in Northern Ohio, and (11/21/19), pages 22-23. nuisance,” including through a cadre claims against the billionaire Sackler 34 Id. at 23. of sales representatives, speakers, family (owners of Purdue) have been 35 Id. at 28. 36 Fortier, Jackie, “Here’s What and direct marketing ploys spreading filed in Massachusetts. The fight is Happened to $829 Million Oklahoma Was deceptive messages throughout the surely not over, but has only just Awarded To Treat Opioid Addiction,” state.34 begun.  KGOU (January 16, 2020). 37 Id. 1 Editorial Comment, American Judge Balkman further concluded 38 Bernstein, Lenny & Katie Zezima, Medicine, 1915, 21 (O.S.), 10 (N.D.) “Purdue Pharma, state of Oklahoma that the First Amendment did not (November 1915): 799-800 (discussing reach settlement in landmark opioid protect Johnson & Johnson’s spread of narcotic drug addiction). lawsuit,” The Washington Post (March misleading messages as they were 2 Feeley, Jef, “Purdue Pharma Reaches 26, 2019). commercial in nature and thus not Deal to Settle Oklahoma Opioid Case,” Editor’s Note: Sarah Dooley is an protected speech.35 The original Bloomberg, (March 25, 2019). \ attorney at Duffy + Fulginiti, where she award was ultimately reduced to 3 See Complaint, ¶53. 4 Id. at ¶55. focuses her practice on representing the $465 million after defense attorneys 5 Id. catastrophically injured. Sarah also pointed out math errors in the 6 Id. 7 Hoffman, Jan, “Johnson & Johnson serves as Editor-in-Chief of the Verdict. Judge’s original award.36 The award Ordered to Pay $572 Million in You may contact Ms. Dooley at: has been appealed, with attorneys for Landmark Opioid Trial,” The New York [email protected]. Oklahoma arguing that Judge Times (August 26, 2019).