The age of accountability

An important judgement on opioids in Oklahoma

While the country is still experiencing the devastating impact of a full-fledged opioid epidemic in 2019, the day may have arrived for a select group of drug manufacturers to face court-mandated restitution for actions they put into place as far back as the 1990s. In a landmark case in Oklahoma, Judge Thad Balkman ruled that Johnson & Johnson must pay the state $572 million for its role in a ‘decade-long marketing campaign’ that undersold the inherent dangers of opioid use.[1] While other opioid manufacturers previously settled lawsuits with the states[2], this marks the first time a judge has ordered a manufacturer to pay for their role in “causing” the opioid crisis. Even though the judgement is considerably less than the $17 billion judgement requested by the state, this case represents a critical decision in that there are over 2,000 more counties and cities with opioid cases pending that will see this case as a sign of things to come.

With public entities looking to cover the costs of the impact of the opioid epidemic on their constituents (including abuse treatment, overall healthcare costs and criminal justice related issues), this ruling also opens up the possibility that several of the key players within the U.S. drug manufacturing chain may be at risk for similar lawsuits if they’ve played any role in creating the opioid epidemic. In what could be seen as a reaction to the Oklahoma judgement, Purdue Pharma, manufacturer of OxyContin and one of the defendants in the Oklahoma case, is already seeking to settle the remainder of its pending cases – which allege the company marketed OxyContin as the next generation of medicine for management of non-cancer chronic pain while underplaying the risks of addiction – for between $10 and $12 billion.[3] OxyContin became one of the more successful drug launches in history and became a template for other drug companies like Janssen, who marketed the long-acting fentanyl product, Duragesic. Owned by Johnson & Johnson, Janssen sought to replicate the success of Purdue by expanding its marketing efforts beyond cancer pain and focusing heavily on non-cancer related pain treatment.[4] Another reason Johnson & Johnson finds itself in the middle of these lawsuits is due to its ownership of two companies, Tasmanian Alkaloids and Noramco. The former company is responsible for producing a key bulk product used to make oxycodone and other opioids while the latter company had a role in refining these products as part of the drug manufacturing process.[4]

What remains to be seen, as the opioid lawsuits continue to play out in a fashion that is reflective of the tobacco class action lawsuits of the 1990s, is whether or not manufacturers will attempt to aggregate claims as an industry and enter into a master settlement agreement that could reduce court costs for all parties. The next real opportunity for that type of action to take place could come before October when a federal court in Cleveland, Ohio is set to begin trial on over 2,000 consolidated opioid claims. At this juncture, we do know Johnson & Johnson have made it clear they intend to appeal the Oklahoma ruling, which could delay final resolution of the case into 2021.

As these opioid cases play out in court over the next several months and years, the urgent reality is that many individuals within our workforces are facing the challenges of opioid use disorder every day. It doesn’t take a court judgement to find ways to make a difference in the opioid crisis. Employers can look to several guiding principles to ensure we’re doing as much as possible to keep our employees safe and healthy.

  • Opioid avoidance: The best way to limit the impact of opioids on the lives of your injured workers is to reduce or avoid their use in the first place. Pharmacy utilization review programs are one way to help prevent opioid abuse.  These programs involve early intervention at the point of sale before the medication is even dispensed. When a doctor prescribes a potentially harmful medication, a nurse receives an alert. This ensures that high risk medications are reviewed and authorized only if they meet clinically sourced guidelines.
  • Thoughtful treatment: It’s important to formulate weaning plans for those already dealing with opioids, and to identify alternative therapies for cases with adverse drug trends. Information should be provided about non-drug pain management therapies at claim inception and especially before a major medical procedure like surgery. It is also important to open avenues to drug alternative treatments such as acupuncture, mindfulness, meditation and physical therapy.
  • Education and support: Improving medical literacy is a big part of supporting the injured worker and ensuring the best treatment options are prioritized and high-risk options are avoided. Claims administrators can support this initiative, ensuring not only that communication is provided, but that the right type of communication comes at the right time based on what’s occurring during the claim. Informative, consultative communications to prescribers, injured workers and pharmacies should be triggered at different steps throughout the claim.
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