Editor’s Note: Holly M. Karibo is an assistant professor of history at Oklahoma State University. She is the author of “Sin City North: Sex, Drugs, and Citizenship in the Detroit-Windsor Borderland.” The views expressed in this commentary are her own. View more opinion articles at CNN.
For two years, the state of Oklahoma prepared a case against major pharmaceutical companies, charging that they played a key role in the rise of the opioid problem across the state. This has raised national debates over whether and how private companies selling legal products can be found liable for the damage those products and their business practices inflict. In Monday’s ruling in Norman, Oklahoma, Judge Thad Balkman provided his answer, ruling against Johnson & Johnson, and ordered the company to pay the state $572 million to help the state prepare abatement programs.
Finally having companies found liable for their actions is cathartic and important. The hard work addressing the issue of addiction, though, clearly still lies ahead.
During the eight-week-long trial, Oklahoma Attorney General Mike Hunter alleged that Johnson & Johnson and its subsidiary Janssen Pharmaceuticals Inc. “embarked on a cynical, deceitful, multibillion-dollar brainwashing campaign to establish opioid analgesics as the magic drug.” Drawing on the “public nuisance” strategy used against Big Tobacco in the 1990s, the state of Oklahoma asked for over $17 billion, which it would use in part to fund addiction treatment and prevention programs over the next thirty years. According to the state’s lawyers, over 6,000 Oklahomans have died from opioid overdoses. They argued that companies like Johnson & Johnson should pay for the cost of their reckless, and ultimately deadly, marketing campaigns and practices. In his closing argument, Hunter pulled no punches, labeling Johnson & Johnson the “kingpin” of the opioid crisis.
When first introduced, the Oklahoma lawsuit also included two other groups of pharmaceutical companies. Rather than face trial, Purdue Pharma agreed to pay $270 million, and Teva Pharmaceuticals USA Inc. agreed to pay $85 million. This was an early sign that drug companies may face an uphill battle in court.
Johnson & Johnson denied both wrongdoing and financial responsibility and announced on Monday its plan to appeal Balkman’s ruling. Pointing to the fact that their products were FDA-approved and prescribed by medical professionals, they argued that any problems that arose were the result of criminal misuse of their products. The company, which marketed the opioid painkillers Duragesic and Nucynta, argued the state failed to prove that the company’s sales practices helped fuel the crisis. As a statement from Janssen Pharmaceuticals Inc. claimed, “In this litigation, the evidence showed that our company responsibly marketed and promoted our prescription opioid medicines, appropriately following the law and regulatory process. We did what a responsible company should do.”
Clearly, their arguments were not convincing.
The “public nuisance” approach was a risky argument for the state of Oklahoma to make. Unlike tobacco products, opioids have a legitimate medical purpose. Further, since the products undergo multiple levels of regulation, it would be potentially more difficult to place the blame directly on the drug manufacturers themselves.
In light of all of these challenges, the judgment against Johnson & Johnson is an important victory. For Oklahoma, it will provide at least some financial support to move forward with more treatment and prevention programs. As a state that regularly suffers from budget crises and cutbacks, this is no small feat. Oversight of these funds, though, will be the key to ensuring they are actually used effectively.
It also proves what to many of us seemed overtly apparent: that corporate profits outweighed the concern for consumers’ well-being in the supply and marketing of opioids. The state of Oklahoma alleged that greed had been a primary motivator for the companies, and today’s judgement affirms that. While it falls far short of the $17 billion requested by the state, it still sends an important message. The actions taken by the companies – including shady marketing techniques – are punishable under the law. Their decisions were not only unethical; they were illegal and had deadly consequences.
It is unclear what impact this will have on other pending legal cases, which currently number about 1,900. Since this case was based on Oklahoma’s version of “public nuisance” law, it cannot simply be replicated in other states. For the many future plaintiffs, though, it provides a brief moment of hope that they too might see some form of justice meted out – even if that justice falls far short of what they deserve.
This case should also serve as a reminder that we need a more nuanced conversation about drug use and addiction in this country. For example, it should push us to reflect on how the structural problems in our health care system failed to help mediate this problem at its outset. Oklahoma has the second highest uninsured rate in the nation. Far too many people are lacking options for pain management, mental health treatment, and access to basic care. Further, the backlash to the opioid problem has made it difficult for those with chronic pain to access drugs that they need. Their lives, too, have been impacted by these companies’ criminal decisions. Ensuring that drug companies pay for some of the damage their practices caused is important. But it’s only one part of much larger health-related issues that we face in this country.