(I'm going to mix and match quotes from these two articles without specification for ease of reading.)
For many reasons I believe that the State of Oklahoma will lose this case. The major reason is because the State's theory of liability is primarily based on the defendants' marketing.
…the State needs to prove that Janssen's marketing statements were misleading, that doctors acted on that and that patients took the drug as prescribed and became addicted or died.
Had the defendants been marketing to unsophisticated consumers this would be a better theory. Except they were not. They were marketing to doctors.
Oklahoma Attorney General Mike Hunter in opening statements Tuesday accused drugmakers of a "cynical, deceitful, multimillion-dollar brainwashing campaign to establish opioid analgesics as the magic drug."
Brainwashing doctors? Really? That's going to be a hard sell to the judge who is determining this case. (No jury.) An even harder sell with this evidence:
Ottaway (defense attorney) said that in 2009, when Janssen said opioids were rarely addictive, the Food and Drug Administration also said the drugs "rarely caused addiction."
Did defendants also brainwash the FDA?
The next problem is causation.
J&J denies wrongdoing, arguing that its marketing efforts were proper and that the state cannot prove it caused the opioid epidemic given the role doctors, patients, pharmacists and drug dealers played.
He cited the CDC report (the chart is based on) as concluding that "States as regulators have the responsibility and authority to monitor and correct illegal prescribers."
If 7-Eleven illegally sells cigarettes to minors is Marlboro responsible? The State has an interesting theory on causation.
"If you oversupply," he repeated over and over, "people die."
Should Marlboro limit their production of cigarettes to prevent minors from obtaining them? By what percentage? Who decides this?
Next we have a problem with damages.
He noted the opioid deaths reflected in the state's chart did not differentiate between those taken as prescribed.
Ottoway concluded his opening Tuesday afternoon, noting that the total documented cases of addictions or death attributed to one of the Janssen medications in the case amounted to "zero."
That last quote really surprised me. It should be rather obvious that you can't just slap up a chart of all opioid related deaths, illnesses and other related costs and then blindly claim the defendants are responsible for all of them. The State should at least have attempted to parse out market share and percentage of illegally imported or manufactured drugs.
It is not an accident that this is the first opioid case to come to trial. Defense attorneys carefully select which cases to settle and which to try. This is a precedent setting case expected to heavily influence a much larger class action scheduled for trial in October. If anyone is interested in the dispute on whether or not this is properly a nuisance law violation, the legal theory is weak but enough to get to trial.
Source: Original link