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Oklahoma’s landmark opioid fine: What you need to know about Canada’s pending suits

Quoted in Global News -

In the fight for accountability in the opioid crisis, it was a historic win.

On Monday, Oklahoma struck the first blow to a drug maker over fuelling the deadly epidemic.

Judge Thad Balkman ordered Johnson & Johnson to pay $572.1 million to the state for “ravaging” the state of Oklahoma. It is the first-ever trial against a company accused of contributing to the rampant use of highly addictive painkillers.

The state argued that the company marketed the drugs with misleading information for years. Balkman said J&J pushed a campaign dating back to the 1990s that downplayed the addiction risk and caused devastating and deadly consequences to thousands of Oklahomans.

Since 2000, some 6,000 Oklahomans have died from opioid overdoses, according to the state’s lawyers.

Currently, 48 states and around 2,000 local and tribal governments have sued companies in the drug industry in connection with the opioid crisis — and Canada is in the fight, too.

B.C. and Ontario

British Columbia has been grappling with an opioid epidemic for years. The province declared the opioid crisis a public health emergency in 2016.

In April 2018, the B.C. government moved to sue 40 companies for their alleged role in the province’s ongoing opioid epidemic. Led by Attorney General David Eby, it is a first-of-its-kind lawsuit for Canada.

Ontario joined the fight about a year later in May 2019.

In Ontario, a separate pending class action suit also filed in May seeks more than $1.1 billion in damages from nearly two dozen of Canada’s top pharmaceutical players — including Apotex, Bristol-Myers Squibb and Johnson & Johnson.

The suit was filed by Canadian law firm Koskie Minsky in May on behalf of patients who became addicted and argues similar negligence in the development and marketing behind the drugs from the 1990s and onward.

The state of claim alleges the companies “relied heavily on sales representatives” to provide doctors with inaccurate information, often over expensive dinners and trips.

None of these claims has been proven in court.

Alan Cassels, a pharmaceutical industry researcher at the University of Victoria, said the drug-making companies were in the business of “remaking pain.”

Opioids play an important role for people in pain, Cassels said, but companies were able to manipulate the “nature of chronic pain” by getting involved in the sale tactics used by drug representatives.

“They were very involved in physician education and remaking the nature of chronic pain — that’s promoting their drugs as being non-addictive, safer [and] not causing the kind of dependency problems that we see that are derived from the opium plant,” he told Global News’ Charles Adler on Tuesday.

“Essentially, you expand the market of people that would use the drug.”

A Saskatchewan judge rejected a $20-million national settlement against Purdue Pharma Canada in March 2018, saying it was inadequate. In the past, New Brunswick expressed interest in a lawsuit to recoup health-care costs associated with the opioid crisis there, but no legal action was taken.

In a statement emailed to Global News, Purdue Pharma Canada said it is “deeply concerned” by the opioid crisis.

“This is a complex and multifaceted public health issue that involves both prescription opioids and, increasingly, illegally produced and consumed opioids, as indicated in successive quarterly monitoring reports from Health Canada,” the statement reads.

“All stakeholders, including the pharmaceutical industry have a role to play in providing practical and sustainable solutions.”

Could Oklahoma’s verdict help Canada?

Oklahoma Attorney General Mike Hunter, who brought the case forward in his state, said he hopes the case provides a “road map” for others to follow in holding drug makers partly responsible.

“I hope it’s a template for the rest of the country,” he told Reuters.

“I hope it’s a template for those who are trying to seek redress for their clients, cities and counties and states. That’s something we feel very proud about. We tried this case, we did what we needed to do and we made a record.”

Prior to Oklahoma’s trial beginning in May, the state resolved claims against Purdue Pharma and Teva for $270 million and $85 million, respectively. The resolutions left Johnson & Johnson as the sole remaining defendant.

Both the B.C. and Ontario class-action lawsuits are civil cases and have not been tested in court.

In response to Oklahoma’s verdict, B.C.’s attorney general said he’s pleased by the decision. In a statement, he reiterated that the fight in B.C. has the same goal as Oklahoma.

“The lawsuit we launched in 2018 holds pharmaceutical companies similarly accountable for the harm they have done to British Columbians and for the financial burdens they have placed on our health-care system,” he said in a statement, as reported by the Canadian Press.

“Along with our recently enacted Opioid Damages and Health Care Costs Recovery Act, this measure is another example of the work that this government is undertaking every day to address the ongoing opioid crisis and build a better system of care and support for British Columbians.”

In a statement emailed to Global News, Brian Gray, a spokesperson for Ontario’s attorney general, said the ministry is “encouraged” by the findings of the Oklahoma court.

“We agree with British Columbia’s attorney general; we too are encouraged by the findings of the Oklahoma Court and its determination that the defendants helped fuel the state’s opioid crisis,” Gray wrote.

“The Oklahoma Court has ordered the defendants to pay $572 million U.S.,” the statement reads. “We should also note that other defendants in this case had already agreed to pay over 350 million dollars in settlement prior to the trial.”

Whether encouraging or not, the U.S. verdict has unknown weight when it comes to the Canadian cases, according to Anita Anand, a University of Toronto law professor and the academic director for the school’s Centre for the Legal Profession.

“This case was handed down in a jurisdiction outside of Canada. Its value at the current time, therefore, is not determined,” she told Global News.

“We will need to wait to see whether lawyers argue on the basis of this case that corporations should be held liable for widespread opioid addiction and whether Canadian courts accept this argument.”

Cassels said drug companies have been hit with similar million- and billion-dollar fines in the past.

While companies should still face consequences for “remaking pain,” he suggested the civil case and subsequent fines are a drop in the bucket.

When the verdict came down in Oklahoma, the sum was substantially less than investors had expected. The result — the verdict drove J&J’s shares up.

“It’s sort of like you’re expecting to get a speeding ticket but really you get a parking fine,” he said.

“Colleagues of mine are saying: ‘We need to see the CEO in an orange jumpsuit, that’s going to stop this stuff in its tracks.’

“We’ll never see that… What’s their incentive to do things right?”

— With files from the Associated Press, the Canadian Press and Reuters 

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