J&J Fights Opioid ‘Kingpin’ Label by Noting 1% Market Share

Johnson & Johnson says it was a bit player in Oklahoma’s market for addictive painkillers to fend off the state’s claim that the drugmaker was the “kingpin” of the opioid crisis.

J&J’s products accounted for less than 1% of the total prescribed in the state.

Billions of dollars could be at stake for J&J and its Janssen Pharmaceuticals unit as a state judge is deciding whether the company bears some legal responsibility for the opioid crisis. Closing arguments in the non-jury trial wrapped up on July 15 after six weeks of testimony.

Attorneys watching the legal fight are split on the company’s odds of success. Some say J&J might not completely avoid liability because of its small market share, but if the judge buys the unique argument, it could limit any fines.

“Intuitively, it seems unfair to hold J&J liable for the total costs of the Oklahoma opioid crisis, given that its drugs were a fraction of those prescribed in the state,” said David Noll, a law professor at Rutgers University.

The state is using a legal concept known as joint and several liability, “meaning that it can collect the full costs of the nuisance from any responsible party,” leaving that party to seek contributions from others, he said.

Kingpin or Not?

Some attorneys said J&J should only be responsible for the small share of the crisis to which its products directly contributed.

“The ‘kingpin’ claim is ridiculous,” said Richard Ausness, a professor at the University of Kentucky College of Law. “Arguably, its maximum liability would not exceed its market share—less than 1%.”

Oklahoma Attorney General Mike Hunter has a different take, focusing on J&J’s prior ownership of companies that produced the active ingredients in oxycodone and sold them to other drugmakers, including Purdue Pharma Inc., which settled with Oklahoma for $270 million.

“When we use that term, ‘kingpin,’ it’s not something that’s flippant,” Brad Beckworth, outside counsel for Oklahoma, told Bloomberg Law. “They are the boss.”

Oklahoma’s lawsuit is the first to go to trial out of more than 1,900 filed by various U.S. government bodies. All allege drugmakers and distributors are responsible for the public-health crisis tied to opioids. All seek help paying for the fallout of drug abuse. The outcome in the Oklahoma case will likely influence future claims and settlement talks.

Different Drugs

Lawyers for New Brunswick, N.J.-based J&J argued the companies can’t be held financially liable for the entire crisis because they didn’t even produce oxycodone or hydrocodone, the two drugs at the heart of the epidemic.

Instead, Janssen produces Duragesic, a patch that delivers a controlled dose of fentanyl over 72 hours, and Nucynta, which the company describes as a less attractive opioid to drug abusers because it’s tamper-resistant and doesn’t create the same euphoric feeling as other drugs.

Together, Janssen’s two drugs captured 0.87% of the opioid market in Oklahoma from 1996 to 2017. In 2013, the state of Oklahoma paid for just 384 prescriptions for Janssen products, a pittance compared to the 338,798 hydrocodone prescriptions and 78,462 oxycodone prescriptions.

“Lawful, strictly regulated, rarely diverted medications like Janssen’s Duragesic and Nucynta products could not and did not cause Oklahoma’s opioid abuse crisis,” J&J attorneys wrote in a court filing.

Oklahoma’s Supply

From 2006-2012, more than 1.4 billion prescription opioid pills were supplied to patients in Oklahoma, according to government records obtained by the Washington Post.

Actavis Pharma Inc., acquired by Teva Pharmaceutical Industries Ltd. in 2016, was the highest-volume manufacturer of pills distributed in the state during that period, at 721.5 million pills. Teva and its affiliate companies settled with Oklahoma for $85 million.

Purdue—which introduced OxyContin, the brand-name version of oxycodone, in the 1990s—ranked fifth in Oklahoma, with 37 million pills.

J&J and Janssen didn’t even rank because they did not make oxycodone or hydrocodone.

J&J’s Other Role

Hunter said J&J created a strain of bioengineered poppies producing raw materials that supplied an estimated 60% of the U.S. oxycodone market.

“You have to connect all the different activities of Johnson & Johnson and Janssen,” Hunter told Bloomberg Law. “When you connect the decision that was made to be the principal source of the active ingredients in opioids for the rest of the country, these companies weren’t competitors—they were collaborators.”

J&J outside counsel John Sparks disputed that characterization as “offensive, sensationalist, and baseless.”

Oklahoma also alleges that J&J worked with other drugmakers behind the scenes to fund ostensibly independent medical groups that pressured doctors to prescribe opioids, saying they were less addictive and more effective than alternatives.

“But for Johnson & Johnson, there is not an opioid crisis in this country,” Beckworth said.

Proving Causation

It will be “remarkably tough” for Oklahoma to prove J&J caused the opioid crisis given its complex origins that include the different products, distributors, uses, and user behaviors, said Nicolas Terry, a professor at Indiana University’s law school.

“These are FDA-approved drugs, and they were being dispensed by physicians. So who are J&J to decide as to what the appropriate number of pills to deliver would be?” Terry said.

The attorney general “hurt his case, I think, by not having sufficient evidence they were the kingpin,” he added.

Question of Liability

Even if J&J convinces the judge it wasn’t a kingpin, it could still face damages under joint and several liability. “It’s really conduct that drives these issues, and conduct can be in the eye of the beholder,” said Andrew Pollis, a law professor at Case Western Reserve University in Cleveland.

“If they sold raw ingredients or active ingredients knowing how those ingredients were going to be used, you could argue they were just as culpable,” he added. “But on the other hand, if they didn’t know and were just meeting demand, all those things could mean, in theory, they were innocent bystanders.”

The case is Oklahoma v. Purdue Pharma, Okla. Dist. Ct., No. CJ-2017-816, trial 7/15/19.