J&J Is Hit With Landmark Civil Judgment

Thom Weidlich 08.29.19


It’s not every day you need to communicate an adverse half-billion-dollar verdict. That’s what Johnson & Johnson faced Monday when an Oklahoma judge ruled the drug giant contributed to the state’s opioid epidemic. Leaving aside the merits of the case, the company did a decent job of conveying its message.

That message was issued very soon after Judge Thad Balkman’s landmark civil verdict in the first trial of a drugmaker over the opioid epidemic; Balkman ordered Johnson & Johnson to pay the state $572 million toward “abatement” of the problem.

The Centers for Disease Control and Prevention estimates 400,000 Americans died from opioids between 1999 and 2017, and many people blame overzealous marketing by drug companies. Purdue Pharma, which makes painkiller OxyContin, had settled with Oklahoma for $270 million and Teva for $85 million.

Though J&J’s stock rose after the verdict because Oklahoma had sought as much as $17 billion, the Aug. 26 ruling is an obvious hit to the company’s reputation. Yet, the drugmaker isn’t known for shying away from courtroom battles; in addition to the painkiller litigation, it faces lawsuits over its talcum powder, which is alleged to cause cancer. The company is well versed in litigation communications.

So it wasn’t surprising that J&J’s lengthy press release on the ruling wasn’t mealy-mouthed, though it did smartly express sympathy for victims of the crisis. The headline also wisely gave the story a forward spin: “Johnson & Johnson to Appeal Flawed Opioid Judgment in Oklahoma.” In other words, as far as J&J is concerned, the news is the appeal, not the court loss.

The company’s messaging stressed its alleged legal compliance, its “responsible marketing,” and its tiny (1 percent) opioid market share in Oklahoma (though it also supplied raw materials to other makers).

Janssen did not cause the opioid crisis in Oklahoma, and neither the facts nor the law support this outcome.

–J&J General Counsel Michael Ullmann

Sympathy Expressed

“Janssen did not cause the opioid crisis in Oklahoma, and neither the facts nor the law support this outcome,” J&J General Counsel Michael Ullmann said in the statement, referring to a company unit that was a defendant. Ullmann also expressed sympathy for those affected by the epidemic.

An interesting aspect of the case was the state’s legal theory, accepted by the judge, that J&J had created a “public nuisance.” The company said in its statement the evidence didn’t show this and it objected that public-nuisance law is usually reserved for property cases.

It also stressed that the ruling isn’t binding on other states. That was important —one reason all eyes were on the proceeding was that states, cities, and tribes have filed 2,000 lawsuits around the country against opioid makers, distributors, and retailers. Many cases are consolidated in federal court in Cleveland, with the first trial scheduled for Oct. 21.

In its statement, Johnson & Johnson mentioned the complexity of the opioid crisis and its efforts to help alleviate it. In their comments, others were not as generous.

“Johnson & Johnson will finally be held accountable for thousands of deaths and addiction caused by their activities,” Oklahoma Attorney General Mike Hunter said after the verdict. “Well, there’s no question in my mind that these companies knew what was going on at the highest level. They just couldn’t quit making money from it.”

J&J said it was “confident it has strong grounds for appeal.” It predicted the appeal process would extend into 2021.

Photo Credit: Scotyard/Shutterstock

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