In getting around what J & J raised as a defense — that its market share of the drugs was minuscule — Mr. Beckworth cited the company’s promotional materials, which praised the benefits of opioids generally. Essentially, he was arguing that a rising tide floats all boats: By presenting opioids as safe and useful, J & J was liable for the harms created by all brands, not just its own.
“Everywhere in the decision tree about prescribing or taking an opioid,” Mr. Beckworth said, “J & J was there first.”
Another significant hurdle for the state is its legal theory: that J & J created a “public nuisance,” which it will have to abate. Legal experts have said such a tactic is risky. A lawyer for the state, Mike Burrage, argued that Oklahoma’s public nuisance law includes interference with the public’s health and safety rights. As for J & J’s assertion that such laws typically cover property, Mr. Burrage said that the harm accrued from the company’s behavior did occur on property: “in doctors’ offices, in pharmacies, homes. In schools, universities, parks.”
The state’s lawyers, including the attorney general, Mike Hunter, laid out their case for nearly two hours, seeking to badly tarnish the company best known for its baby powder and baby oil.
J & J has a reputation for being willing to withstand numerous rounds of trials before agreeing to settle. In that spirit, Mr. Ottaway jumped right in. Eschewing the conventional break between each side’s statements, he grabbed five minutes before lunch to begin damage control. He threw down what will most likely be the defense’s own earworm, made famous in 1770 by John Adams in his defense of British soldiers involved in the Boston Massacre: “Facts are stubborn things.”
In 2009, when J & J’s promotional materials said that opioids “rarely caused addiction,” the Food and Drug Administration made virtually the same assertion, he said. And to push back against Mr. Beckworth’s insistence that the company marketed opioids to children, Mr. Ottaway played a four-minute video, created by the defendants and a school nursing association for high school students, that bluntly described the many dangers of prescription opioids. The company didn’t target teenagers, he said. It warned them.