What To Expect After The Johnson & Johnson Verdict 

By Kelly Burch 08/29/19

The Oklahoma ruling has changed expectations for how other opioid trials will be resolved. 

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When an Oklahoma judge ordered Johnson & Johnson to pay $572 million for its role in contributing to the state’s opioid epidemic, he made history by holding an opioid-related company accountable for damages in court for the first time. 

With thousands of similar cases pending across the country—including 1,600 consolidated lawsuits slated to go before a federal judge in Ohio this October—the Oklahoma ruling has changed expectations for how other opioid trials will be resolved. 

“It’s the first time that any of these claims have been trial tested,” Joe Khan, an attorney representing municipalities from Pennsylvania, New Jersey and Mississippi in opioid-related cases, told TIME

The Aftermath

Khan said that following the verdict in Oklahoma, more drug manufacturers and distributors may be apt to settle their cases. In the Oklahoma case, Purdue Pharma settled for $270 million, while Johnson & Johnson chose to proceed to trial. All other defendants in the case made smaller settlements. The fact that Johnson & Johnson had to pay so much more than Purdue could prompt other companies to err on the side of caution. 

This “sends a very strong signal to defendants [that] rolling the dice (and going to trial) was not the winning strategy,” said Khan. 

Professor emeritus of law at George Washington University, Peter Meyers, said that the Oklahoma case was a “game-changer” that strengthens the cases for other municipalities. Even if the judgment were overturned on appeal, that would not happen before the federal cases begin in October, so the impact of the Oklahoma case will be large, he said. 

He compared the current litigation to lawsuits from the 1990s against Big Tobacco. Ultimately, all 50 states reached a massive settlement, that saw the top five tobacco companies paying $9 billion a year in perpetuity. 

Meyers said, “The world changed when all states began bringing cases on behalf of their constituents.”

Still, following the ruling, Johnson & Johnson’s stock price rose, indicating that the company’s investors were relieved by the result. The state was asking for billions in damages. 

Analyst Joshua Jennings told The New York Times, “As silly as it sounds, a $600 million decision was, relative to expectations, a positive outcome. It was less onerous than many had expected.” 

Setting a Precedent

In addition, other legal precedents could compete with the Oklahoma ruling. The Oklahoma case was based on public nuisance laws: the state essentially argued that drug manufacturers and distributors had created a nuisance with their aggressive and misleading sales tactics.

Although that line of reasoning worked in this case, University of Georgia law professor Elizabeth Burch pointed out that similar cases have failed against gun manufacturers, which could indicate trouble for future opioid lawsuits. 

She said, “You can draw an analogy there, mainly because once you sell a gun, it is no longer in the control of the gun manufacturers.”

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Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.