On Monday, an Oklahoma judge found Johnson & Johnson culpable for having sparked growing rates of opioid misuse and overdose deaths in the state, ordering the company to pay out $572.1 million in damages. The verdict will likely be appealed by the pharmaceutical giant, but it nonetheless represents the first major state case won against a company for directly causing the opioid crisis.
While some public health experts have championed the verdict as a positive step forward, though, others are worried about the narrative it reinforces. And then there’s the question of who will benefit from the eventual money obtained from this and similar lawsuits.
There are currently thousands of civil lawsuits on the books against pharmaceutical companies who either produced, marketed, or distributed opioid products; many of these have been bundled together as part of one case set to be heard before an Ohio federal court jury this October. Though these lawsuits have used different legal strategies at times, they typically lay the blame at the foot of pharmaceutical companies for misleading the public about the dangers of their products.
It’s very much true that prescription opioids played a substantial part in helping increase rates of substance-use disorder and fatal overdoses in recent decades. Experts generally believe these drugs represent the first wave of the crisis and opioid-related deaths, which began in the late 1990s. Companies such as Purdue, the now-infamous maker of the painkiller OxyContin, fueled the crisis by flooding the market with its products, while downplaying or outright lying about their potential risks. Purdue also turned a blind eye to doctors who prescribed too many opioids to patients or who diverted their supply to the black market.
But the startling rise in overdose deaths in recent years, beginning around the 2010s, has largely involved heroin and its more potent synthetic cousins, fentanyl and similar analogs. Most people who take prescription opioids for their intended use, including patients with chronic pain, never develop an unhealthy dependence.
Yet new laws and restrictions enacted in response to the crisis have centered around prescription opioids, and many chronic pain patients have reported feeling stigmatized and left without adequate pain control as a result.
Leo Beletsky, associate professor of law and health sciences at Northeastern University in Boston, worries that the focus on these lawsuits obscure these realities, along with the deeper roots of the overdose problem that go beyond a single company or drug.
“There is no question that pharmaceutical companies played a role in surging rates of addiction and overdose, but this role was far more complex than the picture painted by this decision,” he told Gizmodo via email. “Also, I am concerned that decisions of this sort frame the conversation around ‘a few bad apples,’ when in fact we should be talking about fundamental pharmaceutical industry reform addressing major problems in marketing, pricing, and other elements of this powerful industry.”
Cheryl Healton, dean of the College of Global Public Health at New York University, noted that these lawsuits don’t prevent us from going after other systematic causes of the crisis. But she and others are concerned about whether the financial proceeds from these cases will truly be enough restitution to address the crisis, and whether they’ll end up in the hands of those who most need it.
“I think this is a great public health victory, for starters,” she told Gizmodo by phone. “But even though [$572.1 million] sounds like a huge amount of money, it’s a one-time amount to cover multiple years of a problem, which will not easily disappear.”
Prosecutors had originally sought $17 billion in damages. Prior to the seven-week trial that began in May, Oklahoma had already reached settlements with two of the co-defendants originally charged with Johnson & Johnson, the generic drug manufacturer Teva and Purdue Pharma, for $85 million and $270 million respectively. But the prosecution team was criticized for the agreement reached with Purdue, which allocated a large sum of the money to establish a new opioid research and treatment center at Oklahoma State University.
Oklahoma legislators criticized the agreement because it superseded the typical role of the state treasury in deciding where the money from settlements should be sent. Public health experts, on the other hand, bemoaned the money not being used to directly fund medication-assisted treatments for opioid-use disorders, such as buprenorphine, naltrexone, or methadone.
The court decision may not have a direct impact on the litigation ongoing in Ohio, which is predicated on different legal claims. But it may put more pressure on pharmaceutical companies to reach a settlement prior to the October trial. And more than 40 states currently have lawsuits using a similar “public nuisance” strategy against various pharmaceutical companies, according to the Washington Post. If Johnson & Johnson’s loss signals a trend, then these lawsuits may largely end in settlements as well.
The most optimistic scenario, Healton said, is that states reach a substantial mass settlement with the pharmaceutical industry, similar to the $246 billion settlement reached with the tobacco industry in 1998. But the fear is that history repeats itself too much. The vast majority of the money paid so far by Big Tobacco hasn’t gone to programs intended to prevent new smokers or help current smokers quit. Many public health organizations are working behind the scenes to prevent that from happening with the potential opioid money, according to Healton, but whether they will succeed is still unclear.
“I would think it would have to be upwards of a $100 billion national settlement to address the opioid epidemic on a national scale,” Healton said. “And were that to happen, it would be very sad if the roadmap for the use of the funds were potholes and pet projects. And I think there’s a chance something like that could happen.”