It’s hard to say whether the good guys won, per se. But from my vantage point, it appears the bad guys took a serious shot between the legs this week. Such victories, however imperfect, need to be savored. A district judge no one ever heard of before in a small Oklahoma county known as Cleveland — about half the size of Santa Barbara County — brought the hammer down big-time on Johnson & Johnson, a $300 billion corporation, for its role in causing the opioid epidemic. Judge Thad Balkman ordered Johnson & Johnson to pay the state $572 million, about what it will cost to launch a statewide addiction abatement and recovery program and keep it running for just one year.
The Santa Barbara County supervisors, by the way, have joined a separate legal action against Johnson & Johnson — and a host of other Big Pharma companies implicated in a premeditated and far-flung national opioid conspiracy that’s cost the American Economy more than $500 billion. Santa Barbara County drug officials report there were 376 opioid-related overdose deaths between 2014 and March 2019. Of those, roughly two-thirds were deemed accidental. And of those, 44 involved fentanyl. That separate case is now unfolding in the State of Ohio.
Until Monday, I’d never heard of Judge Balkman. Now he’s my all-time favorite right-wing Mormon. It turns out Balkman grew up in Long Beach, where his childhood home had a starring role in John Hughes’s 1986 film Ferris Bueller’s Day Off. Balkman happened to graduate from the same high school at the same time as Snoop Dogg. When Dogg recently held a 30-year reunion bash, Balkman showed up. Selfies abound. In a previous incarnation, Balkman served six years in the Oklahoma State Assembly where he was reviled by Democrats for being “anti” everything. About six years ago, he got appointed to the bench, where he now handles pretty much everything on the frontlines of American jurisprudence. In other words, a whole lot of family violence. Sometimes it gets to him. In one case, he sentenced a defendant to 3,000 years.
For 33 days this summer, Balkman presided over a bench trial on a public nuisance lawsuit filed by Oklahoma Attorney General Mike Hunter against Johnson & Johnson. Forty-two witnesses were called. When it was over, Balkman issued a 42-page ruling. It’s not great reading in that lofty, stentorian way some judges strive for. It was just good enough to make me want to grab a ballpeen hammer and take out a few kneecaps. Naturally, the Wall Street Journal has belittled the verdict, saying it’s great news only to people looking for a convenient “scapegoat.” Having read all 42 pages, I’d say Balkman was lenient.
Between 2011 and 2015, he concluded, 2,100 Oklahomans died unintentionally from opioid overdoses. In 2015 alone, Oklahoma pharmacies dispensed 110 pills for every adult in the state. Two years later, more than 4 percent of babies born under SoonerCare insurance came into the world going through drug withdrawals.
But why Johnson & Johnson, the company that’s forever defined how freshly cleaned and diapered babies are supposed to smell?
Let’s start at the beginning. Until 2016, Johnson & Johnson owned a couple subsidiaries that engineered the creation of new brand of super opium poppies that subsequently proved absolutely crucial — for a host of legal, technical, and regulatory reasons — for the development of new synthetic opioids. These Super-Poppies — grown in massive fields on the island of Tasmania — had cute names like the “Norman” and the “Ted.” The drugs they manufactured with that opium they marketed with the catchy slogan, “From Our Fields to Your Formulations.”
By the mid ’90s, Johnson & Johnson was selling a host of new pain-relieving drugs, fentanyl being the most infamous. The company sponsored scientific “research” indicating America was in the throes of a pain management crisis that left millions forced to endure unabated agonies. Its research “showed” that the risks of addiction from their drugs were minimal compared to those of other companies. It operated pain management clinics that dispensed these drugs. It marketed the hell out of it all, bombarding front line doctors with branded and unbranded sales pitches, relentlessly minimizing the risks of addiction.
Its sales teams, Judge Balkman concluded, were schooled in “emotional selling techniques” that understated the products’ obvious hazards. They launched websites such as “Prescribe Responsibly,” not attributed to the company, which dismissed “pseudo-addiction” and “opiophobia” as impediments to treatment. They claimed scientific studies demonstrated that if a doctor prescribed opioids, there was a 2.6 percent lower risk of addiction. Doctors bought it — worn down by non-stop sales calls, free meals, free trips, free symposia, and endless proselytizing by reputable-sounding medical organizations such as the American Academy of Pain Medicine, a group bankrolled by Johnson & Johnson.
But Johnson & Johnson knew the truth. As early as 1998, Balkman found, the company had been put on notice by the Food and Drug Administration (FDA) that its marketing claims were “false and misleading.” By 2001, a scientific advisory board hired by the company itself put corporate officers on notice that no data existed to support marketing claims that their drugs were “low risk” when it came to addiction, and in fact would actually lead to increased addiction. In 2004, the FDA put the company on notice yet again for “false and misleading claims.” On most planets, that kind of evidence qualifies as a “smoking gun.”
Among the legal definitions of public nuisance cited by Judge Balkman was that it “offends decency.” Systematically lying as part of a multi-billion-dollar marketing campaign certainly qualifies. Such speech, the judge ruled, is not covered by the First Amendment.
The day after Balkman issued his ruling, Johnson & Johnson’s stocks went up. The market had expected worse.
Where’s my ballpeen hammer?
Correction: The District Court that heard the Johnson & Johnson case is in Norman, Oklahoma, the seat of Cleveland County, not in the city of Cleveland, OK.