California Judge Questions Counties’ Opioid Case Against Drugmakers at Trial’s End

A California judge on Thursday said several large counties accusing four drugmakers of fueling an opioid epidemic had presented a “dearth of evidence” during a multi-billion dollar trial to support finding the companies’ pain pill marketing caused the health crisis.

Judge Peter Wilson sharply questioned the counties’ lawyer during closing arguments about what evidence would support finding Johnson & Johnson, Teva Pharmaceutical Industries Ltd, Endo International PLC and AbbVie Inc’s Allergan unit liable for the epidemic.

Fidelma Fitzpatrick, a lawyer for the populous Santa Clara, Los Angeles and Orange counties and the city of Oakland, argued the drugmakers’ marketing downplayed opioids’ addictive risks and promoted them for broader uses than intended.

That advertising led to billions of pain pills flooding their communities over 20 years and an ongoing rise in opioid overdose deaths, Fitzpatrick said in her closing argument.

“Those promotional activities worked,” she said.

But Wilson, the Orange County Superior Court judge presiding over the non-jury trial, said the plaintiffs lacked evidence showing the marketing caused doctors to write inappropriate, rather than appropriate, prescriptions.

Wilson said policymakers seemed to have known an increase in prescriptions of U.S. Food and Drug Administration-approved opioids could result in “regrettable” abuse yet accepted that as a trade-off to ensure pain was treated.

“It’s the dearth of evidence by a single doctor, a single patient, a single person to say ‘I changed my practices because…,’ or ‘I did something different because…,'” he said. “That’s the inference I’m being asked to draw.”

Michael Yoder, J&J’s lawyer, agreed, saying the plaintiffs “can’t start with an abstract problem and work backwards to determine if there’s an actionable public nuisance.”

The case is one of 3,300-plus lawsuits by largely state and local governments seeking to hold drugmakers, distributors and pharmacies responsible for an epidemic that U.S. government data shows led to nearly 500,000 opioid overdose deaths from 1999 to 2019.

The closing argument came after J&J and the three largest distributors- McKesson Corp, Cardinal Health Inc and AmersourceBergen -in July agreed to pay up to $26 billion to settle cases against them.

The California counties, though, are not part of the proposed settlement with J&J and have pressed ahead with their case.

Should Wilson find the drugmakers liable, the counties say they should have to pay more than $50 billion to cover the costs of abating the public nuisance they created, plus penalties.