United States District Court, N.D. Ohio, Eastern Division
IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO: Track One Cases
OPINION AND ORDER DENYING JANSSEN'S MOTION FOR
AARON POLSTER, UNITED STATES DISTRICT JUDGE.
the Court is Defendants Janssen Pharmaceuticals, Inc. and
Johnson and Johnson's (“J&J's”)
Motion for Summary Judgment (Doc. #:
1919). For the reasons set forth below, the
Motion is DENIED.
Janssen, Plaintiffs assert claims based on two factual
theories: (1) fraudulent marketing; and (2) the failure to
maintain effective controls against diversion. Janssen seeks
summary judgment on all claims. As to the fraudulent marketing
claims, Janssen asserts: (1) Plaintiffs cannot show its
alleged conduct caused the opioid crisis in Ohio; and (2)
Janssen cannot be held liable for third-party statements that
are protected by the First Amendment. As to the claims for
failure to maintain effective controls against diversion,
Janssen asserts Plaintiffs cannot show: (1) Janssen's
suspicious order monitoring system (“SOMS”) was
deficient; or (2) any such deficiency caused cognizable harm
to Plaintiffs. The Court addresses these arguments below.
Court hereby incorporates the legal standards set forth in
the Court's Opinion and Order regarding Plaintiffs'
Summary Judgment Motions Addressing the Controlled Substances
Act, see Doc. #: 2483.
asserts Plaintiffs cannot show its alleged marketing
misconduct caused the opioid crisis in Ohio. See
Jan. Mem. at 2-7 (Doc. #: 1919-1). In denying Defendants'
Motion for Summary Judgment on Causation (Doc. #: 2561), the
Court found Plaintiffs presented evidence sufficient to
support a finding that each Manufacturer, including Janssen,
engaged in misleading marketing activities that resulted in a
substantial increase in the supply of prescription opioids
and proximately caused harm to Plaintiffs. See SJ
Order re Causation at 3-6 (Doc. #: 2561); see also
Pls. Ex. 146 at 22 (Doc. #: 2431-4) (Janssen's patient
booklet regarding Duragesic: “Addiction is
relatively rare when patients take opioids
appropriately.”) (emphasis added).
instant Motion, Janssen asserts Plaintiffs cannot show its
alleged marketing misconduct caused Plaintiffs' harm
because: (1) as to branded marketing, Janssen's products
were not widely sold or abused; and (2) Janssen's
unbranded marketing was “too obscure and occurred too
late [in time].” Jan. Mem. at 5-7 (Doc. #: 1919-1). As
noted, the Court has already determined that Plaintiffs
presented sufficient evidence to create genuine issues of
material fact as to whether Janssen's conduct was a
substantial factor in producing the alleged harm to
Plaintiffs. See SJ Order re Causation at 3-6 (Doc.
#: 2561). Janssen's additional arguments regarding
causation do not change this result.
branded marketing, Janssen contends Plaintiffs cannot show
causation because its market share was too small (less than
one percent) and its opioid products (patches) were more
difficult to abuse than opioid pills. See Jan. Mem.
at 5-7 (Doc. #: 1919-1). These arguments go to factual
questions for the jury to decide. See Order Denying
Small Dist. MSJ at 5 (Doc. #: 2559) (“even a very small
proportional contribution by one of numerous defendants could
equate with a rather large and substantial absolute quantity,
both in monetary terms and in terms of the consequent
harms”); Pls. Opp. at 5-6 (Doc. #: 2388) (pointing to
evidence of abuse of Janssen's products in the Track
One Counties); Pls. Ex. 35 at 5-6 (Doc. #: 2390-5) (2016
meeting notes indicating FDA found Janssen did not present
sufficient data to support its abuse-deterrent claims).
unbranded marketing, Janssen asserts it “did not
publish the challenged unbranded marketing materials until
2008 long after opioid abuse had become a crisis in
Ohio.” Jan. Mem. at 5 (Doc. #: 1919-1). Janssen argues
that, as a matter of law, Plaintiffs' chronology of facts
cannot support the conclusion that its unbranded marketing
activities “caused a crisis that had already been well
underway for years.” Id. at 6. Again,
Janssen's argument highlights material fact issues for
the jury. Moreover, Plaintiffs point to evidence that
suggests, before 2008, Janssen contributed substantial sums
of money to third parties who published misleading statements
about prescription opioid use. See Pls. Opp. at
13-16 (Doc. #: 2388) (from 1997 to 2012, Janssen paid at
least $4, 078, 750 to front groups and $327, 546 to
individual doctors); Pls. Ex. 38 (Doc. #: 2390-8) (summary of
payments made by Janssen from 1997 to 2012). On this record,
a jury could reasonably conclude Janssen's unbranded
marketing efforts were a substantial factor in producing the
harm alleged by Plaintiffs. Accordingly, Janssen is not
entitled to summary judgment on this ground. See SJ
Order re Causation at 5-6 (Doc. #: 2561).
asserts it cannot be held liable for the speech of third
parties, i.e. front groups and doctors, that is
protected by the First Amendment. See Jan. Mem. at
7-8 (Doc. #: 1919-1). Specifically, Janssen contends this
third-party speech involves “medical questions of
undisputable interest and ...