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In re National Prescription Opiate Litigation

United States District Court, N.D. Ohio, Eastern Division

September 4, 2019

IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO: Track One Cases

          OPINION AND ORDER DENYING JANSSEN'S MOTION FOR SUMMARY JUDGMENT

          DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants Janssen Pharmaceuticals, Inc. and Johnson and Johnson's (“J&J's”) Motion for Summary Judgment (Doc. #: 1919).[1] For the reasons set forth below, the Motion is DENIED.

         Against 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.[2] 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.

         I. Legal Standards.

         The 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.

         II. Analysis.

         A. Fraudulent Marketing.

         1. Causation.

         Janssen 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).

         In the 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.

         As to 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).

         As to 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).

         2. First Amendment.

         Janssen 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 ...


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