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How Oklahoma opioid ruling could affect Canadian drug liability claims


August 28, 2019   by Laura Kane  THE CANADIAN PRESS


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VANCOUVER – An Oklahoma court ruling that found Johnson & Johnson helped fuel the state’s opioid crisis and ordered the company to pay US$572 million could persuade drug manufacturers to settle a similar lawsuit in British Columbia, legal experts say.

The decision in the United States does not directly apply to B.C. because it found the company created a “public nuisance” under a specific state law, said Dr. Michael Curry, a clinical associate professor at the University of British Columbia who has a legal background.

B.C., on the other hand, filed a proposed class-action lawsuit a year ago alleging a number of pharmaceutical companies falsely marketed opioids as less addictive than other pain drugs and helped trigger an overdose crisis that has killed thousands.

But Curry said the fact that Johnson & Johnson and its subsidiaries were ordered to pay Oklahoma more than twice the amount another drug maker agreed to pay in a settlement will add pressure to companies to settle the various claims they’re facing.

“I do think it emphasizes to the pharmaceutical companies that there is going to be some accounting for or responsibility for some of their actions during the opioid crisis. I think it creates pressure from a stock market basis and also a legal basis to settle these claims,” he said.

But Curry noted that Johnson & Johnson’s stock price rose after the ruling because many investors expected the fine to be higher.

 

Attorneys for the company have maintained that they were part of a lawful and heavily regulated industry subject to strict federal oversight. The lawyers say the ruling was a misapplication of the public nuisance law and they will appeal to the Oklahoma Supreme Court.

 

The ruling in Oklahoma followed the first state opioid case to make it to trial and could help shape negotiations in about 1,500 similar lawsuits filed by state, local and tribal governments consolidated before a federal judge in Ohio.

 

Ontario and New Brunswick have announced they will participate in B.C.’s lawsuit, while Newfoundland, Nova Scotia and Quebec are participating in a national working group on the case, said B.C. Attorney General David Eby on Tuesday.

 

Eby said the B.C. case is different because it names dozens of manufacturers and distributors, while Oklahoma named only one company after settling with others. But he said they are based on very similar facts and Johnson & Johnson is a defendant in the province’s suit.

 

“To have a judge say, ‘Yes, we do see a serious problem here with how this company conducted itself and we do feel that it needs to be paying money out because of the way it marketed these very addictive and harmful drugs,’ is a very positive sign for our litigation here in Canada,” he said.

 

A case management conference is scheduled for the fall to determine the timeline for the “complex and very dense” litigation, Eby added.

 

Purdue Pharma, the maker of OxyContin and a defendant in B.C.’s lawsuit, has said that it followed all of Health Canada’s regulations, including those governing marketing, and it’s very concerned about the opioid crisis in B.C. and across Canada.

 

None of the allegations in the B.C. lawsuit have been tested in court.

 

Statements of defence from Johnson & Johnson and Purdue Pharma could not be found on the B.C. Supreme Court website on Tuesday.

 

A ruling in the United States is not binding in Canadian courts, but the Oklahoma judgment and settlements suggest there is a basis to B.C.’s arguments, said Neil Boyd, a criminology professor at Simon Fraser University.

 

“The concern about pharmaceutical companies and the roles that they have played is a concern that goes beyond the boundary of a single jurisdiction,” Boyd said.

 

“The precedent of a finding that a pharmaceutical company contributed to the problem that we have seen across North America, I’m very sure that ruling has the attention of a number of pharmaceutical companies.”

_ With files from The Associated Press.