State's lawsuit against drug companies becoming increasingly bitter
NORMAN — Oklahoma's lawsuit against opioid manufacturers has become increasingly bitter, with attorneys for the state accusing Johnson & Johnson of hiding critical documents and engaging in delay tactics.
Attorneys for the drug companies have fired back, accusing the state's attorneys of participating in a "media campaign" that targets Oklahoma citizens with "state-sponsored propaganda" against the Purdue group of pharmaceutical companies.
Both sides repeatedly have asked the trial judge, Thad Balkman, and discovery master Bill Hetherington to step in and settle evidence gathering disputes as the case steams toward a May 28 jury trial date in Cleveland County District Court.
The lawsuit, filed by Oklahoma Attorney General Mike Hunter, accuses more than a dozen drug companies of making billions of dollars off the sale of opioids through fraudulent marketing campaigns that misrepresented the addictive properties of the painkilling drugs.
Waging the legal battle are a bevy of high-dollar metro and out-of-state lawyers who have filed and argued over thousands of pages of motions, replies, subpoenas and other documents.
To spearhead the state's efforts, Hunter brought in a firm whose principals are Reggie Whitten, whose son was a prescription drug and alcohol addict who died in a vehicle accident, and Michael Burrage, a former federal judge.
The state won a major victory in August when a federal judge allowed the case to remain in state court. The drugmakers sought to move the dispute to a U.S. District Court in Ohio, which is hearing a multi-jurisdictional opioid lawsuit that includes numerous states and other governments as plaintiffs. Oklahoma City recently filed its own lawsuit against opioid manufacturers, distributors and some doctors. That lawsuit is pending in Oklahoma County District Court.
Judge Balkman, a former state lawmaker, has yet to rule on two contentious motions filed recently in the Cleveland County case.
In one motion, attorneys for the state accused Johnson & Johnson of hiding two critical documents and engaging in delay tactics.
"J&J hid this document and hoped that the state would not find it," Oklahoma's lawyers said of one particular corporate document.
The document was a 2018 Johnson & Johnson request for grant proposals that included the statement that "as many as one in four patients receiving long-term opioid therapy in a primary care setting struggles with opioid addiction."
The other document was contained in materials distributed at a 2006 Capitol Hill briefing by the Pain Care Forum. Oklahoma's attorneys said Johnson & Johnson is a member of the Pain Care Forum, which they described as a coalition of advocacy groups, opioid manufacturers, key opinion leaders and front groups that collaborate to influence federal and state legislators.
The briefing materials included the statement: "Appropriate use of opioid medications like oxycodone is safe and effective and unlikely to cause addiction in people who are under the care of a doctor and who have no history of substance abuse," the state's attorneys said.
"This statement was and remains false," the attorneys said. "It is a lie. There is no better word for it. A lie is a lie is a lie. And this lie killed. And still kills."
Oklahoma's attorneys are asking the trial judge to impose severe sanctions, including banning 12 of Johnson & Johnson's out-of-state lawyers from participating in the case, prohibiting the drug company from utilizing several key legal defenses, and fining the company $5,000 a day until it presents a witness prepared to testify on designated topics.
Attorneys for the drug companies have fought back with their own court filings and are accusing the state's attorneys of participating in a propaganda campaign.
Much of their criticism focused on a seven-part "documentary" on opioid addiction called "Killing Pain" that was released online in August.
That series was financially backed by Fighting Addiction Through Education (FATE), a nonprofit organization founded by Whitten, one of the state's lead attorneys the opioid lawsuit.
Whitten also is listed as an executive producer for the series, which blames a deceptive marketing campaign by pharmaceutical companies for causing the opioid epidemic.
"'Killing Pain' is nothing short of a state-sponsored comprehensive media campaign purposefully directed at Oklahoma citizens and purposefully orchestrated to extend the state's position in this case via social," Purdue's attorneys contend.
Whitten says he's offended by the allegation.
"I'm proud of what I'm doing," Whitten told The Oklahoman. "I think Purdue should be ashamed of themselves for intimating in any way, shape or form that I've done anything wrong. It's total bull ... I have a First Amendment free speech right to do my nonprofit work ... I plan on continuing to do it. There's no conflict with representing the state on this lawsuit."
Lawyers for Purdue have asked the judge to enforce subpoenas issued to the nonprofit Whitten founded as well as the Oklahoma City film production company Lampstand Media, which produced the documentary "Killing Pain."
Among other things, the drug company lawyers are seeking detailed information about who funded the documentary as well as communications between people involved in the film's production and employees and agents of the State of Oklahoma.
Whitten openly acknowledges that FATE, the nonprofit he founded, financed the production of "Killing Pain," but said it wasn't done to bolster the state's lawsuit against drug companies. He contends the subpoenas are "harassment."
"I came up with the idea of making this film and we started working on it before I ever got hired on the opioid case," Whitten said. "I never even knew there was going to be an opioid case."
Whitten said his passion for fighting opioid addiction was ignited by the 2002 death of his 25-year-old son, Brandon, a prescription drug and alcohol addict who died in a vehicle accident.
FATE and Lampstand are fighting the subpoenas, arguing the information requested is "overly broad and unduly burdensome."
FATE argues its subpoena also intrudes on "freedom of speech and freedom of association privileges granted by the First Amendment," while Lampstand argues its subpoena seeks information "protected by the journalist's privilege."
Purdue attorneys dispute those arguments.
"FATE and Lampstand, with the help of the state, (Attorney) General Hunter, and the state's private counsel, have no problem attacking the marketing and media campaigns fostered by Purdue in relation to opioid abuse, but cry foul when Purdue seeks to discover relevant information related to their state-endorsed media campaign which targets the citizens of Oklahoma with state-sponsored propaganda against Purdue," the attorneys said.