Four manufacturers of prescription opioids won the pharmaceutical industry’s first major legal victory in the opioid crisis, turning aside claims by local California governments that they contributed substantially to the epidemic.
In a bench trial decision late Monday, a state judge flatly rejected a legal argument being employed in thousands of cases against the pharmaceutical industry over its role in an epidemic of abuse that, according to federal data, has contributed to the deaths of some 500,000 people in the United States since the late 1990s and grown worse during the pandemic.
“There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need,” wrote Judge Peter Wilson of Orange County State Superior Court, who presided over a four-month bench trial.
The manufacturers include Johnson & Johnson, which has a nationwide opioids settlement offer pending; Teva, a maker of generic opioids based in Israel; Allergan, a subsidiary of AbbVie; and Endo Pharmaceuticals.
Brought by the counties of Santa Clara, Los Angeles and Orange and the city of Oakland, the case, filed in 2014, was one of the first to demand that drug manufacturers be held accountable for the ongoing epidemic.
The legal issue before Judge Wilson was whether the companies were liable for creating “a public nuisance,” an argument put forth by the local California governments as well as most plaintiffs pursuing cases against the industry in state and federal courts across the country.
Even if the companies perpetrated false or misleading marketing, wrote Judge Wilson, “any adverse downstream consequences flowing from medically appropriate prescriptions cannot constitute an actionable public nuisance.” He also emphasized that neither he nor the companies disputed the gravity of the opioid epidemic.
Essentially, he said that the plaintiffs could not distinguish the rise in legitimate prescriptions of federally approved pain medications from those that were illegitimate or otherwise ill-gotten.
Even if the judge could infer that the rise in opioid prescriptions must have logically included the medically inappropriate ones, he wrote, the plaintiffs did not offer evidence to show that, “without rank speculation,” the volume of those prescriptions helped create the public nuisance and, if so, to what extent.
The ruling underscored what legal experts have asserted from the outset about the opioid litigation: that apportioning responsibility will be very difficult, because opioids pass through so many entities — including manufacturers, medical supply distributors, doctors and pharmacies, including big-box retailers — before reaching a patient. Crucially, the medication is federally approved. Moreover, establishing a nexis between the corporate entities and the substantial illegal trafficking of opioids is also very challenging.
An Oklahoma state judge presiding over a 2019 bench trial against Johnson & Johnson ruled against the company, however, finding it liable for $465 million, a decision that is currently on appeal. In July, the company proposed a nationwide settlement of $5 billion over nine years, pending approval by plaintiffs in thousands of cases. At the time, the California plaintiffs chose not to participate because of their ongoing trial.
Judge Wilson’s decision is labeled “tentative,” a procedural term, although in practice it is final. The plaintiffs have already announced they will appeal and noted that this is just one state case among thousands that have been filed.
“The people of California will have their opportunity to pursue justice on appeal and ensure no opioid manufacturer can engage in reckless corporate practices that compromise public health in the state for their own profit,” the lawyers said in a statement.
The plaintiffs originally named Purdue Pharma as the first defendant in the case, but the company filed for bankruptcy protection and restructuring.
The remaining companies in the case hailed the ruling.
Teva said, in a statement, that “a clear win for the many patients in the U.S. who suffer from opioid addiction will only come when comprehensive settlements are finalized and resources are made available to all who need them.”
Teva, Endo and Allergan are currently on trial in New York, the first jury trial in an opioids case. Pharmacy chains are facing a jury trial in a federal Ohio court. A recently concluded bench trial brought by local West Virginia governments against distributors awaits a federal judge’s decision. Washington State’s trial against Johnson & Johnson is scheduled for early next year.
Johnson & Johnson, referring to its pharmaceutical division, Janssen, which made its opioids, said: “The well-reasoned tentative decision reflects the facts of the case: Janssen’s actions relating to the marketing and promotion of its important prescription pain medications were appropriate and responsible and did not cause any public nuisance.”