Oklahoma opioid ruling ‘gives us a successful road map’ for Canadian lawsuits, lawyer says

For a former Barrie, Ont., emergency room doctor who became addicted to opioids and is now the lead plaintiff in a billion dollar class-action lawsuit, a $572 million US Oklahoma court ruling against Johnson & Johnson is a great start.

“It’s clearly a landmark case making it easier for people who are suffering with substance abuse disorder and perhaps some bad consequences to get treatment,” said Darryl Gebien, who lost his job, custody of his children and was ultimately charged and jailed after becoming addicted to fentanyl to deal with pain.

“It’s still a drop in the bucket compared to the amount of money it’s going to take to help conquer the opioid crisis,” said Gebien, who at one point was writing fraudulent prescriptions for himself.

“And it’s also a drop in the bucket compared to how much money the pharmaceutical industry made over the years.”

In the first state opioid case to make it to trial, an Oklahoma judge found Johnson & Johnson and its subsidiaries helped fuel the state’s opioid crisis, ordering the company to pay $572 million.

Johnson & Johnson says it will appeal. Meanwhile, OxyContin maker Purdue Pharma Inc. and its owners, the Sackler family, are offering to settle more than 2,000 lawsuits against the company for $10 billion to $12 billion, NBC News reported Tuesday, citing people familiar with the matter.

But similar class-action lawsuits against opioid manufacturers have been launched in Canada, raising questions whether the landmark ruling in Oklahoma will have any impact on those cases currently before Canadian courts.

‘Not get too excited’

“We have to be careful as to not get too excited about one court case in one state where one judge found one company liable,” said lawyer Adam Tanel.

Tanel’s Toronto-based law firm is representing Gebien in the Ontario-based  $1.1 billion class-action lawsuit against some of the biggest pharmaceutical names in the country, including Johnson & Johnson, Apotex, Bristol-Myers Squibb and the Jean Coutu Group.

Gebien, now in recovery, was charged and later convicted in 2017 of trafficking fentanyl and served eight months in jail.

“You develop tolerance and to get around that you need more and more and more. So over several years my reliance on it increased to treat the pain, but also to feel the euphoric effects on it,” he said. “I needed more and more and so that got me into a deeper and deeper addiction.”

The untested statement of claim filed in Ontario Superior Court in May on behalf of patients, including Gebien who became addicted to prescribed opioids, also seeks a declaration that the companies were negligent in how they researched, developed and marketed opioids starting in the 1990s.

“Obviously, Oklahoma court’s decision is not going to be binding on the Ontario courts,” Tanel said.

But there are two important and significant takeaways, he said.

The evidence used in these cases is often the same evidence, Tanel said. The evidence used to prove corporate malfeasance in Oklahoma is going to be similar, if not the same, as the evidence his firm seeks to use to prove it in its case.

As well, the allegations are almost identical — that the drug manufacturer over-reported the efficacy of their products and under-reported dangers associated with their products, Tanel said.

Still, “this is going to be a long battle against a great number of well-funded pharmaceutical companies,” Tanel said.

In Canada, the province of British Columbia launched its own class-action lawsuit a year ago against dozens of pharmaceutical companies in a bid to recoup the health-care costs associated with opioid addiction. The civil claim filed by the B.C. government names the maker of OxyContin — Purdue Pharma — as well as other major drug manufacturers, and also targets pharmacies, alleging they should have known the quantities of opioids they were distributing exceeded any legitimate market.

None of the allegations contained in the civil claim has been proven in court.

Purdue Pharma has said it followed all of Health Canada’s regulations, including those governing marketing. The company also says it has adhered to the code of ethical practices as a member of Innovative Medicines Canada, a pharmaceutical industry organization that works with governments, insurance companies and health-care professionals.

Similar facts

On Tuesday, B.C. Attorney General David Eby noted that the Oklahoma ruling is based on very similar facts argued in the government’s litigation.

“I think it would have been a more difficult situation had the court in Oklahoma said, ‘We don’t see any liability here,'” he said.

But the fact that a judge found that there’s a serious problem with how this company conducted themselves, marketed these drugs and awarded financial damages “is a very positive sign for our litigation here in Canada,” Eby said.

Reidar Mogerman, a B.C.-based lawyer who is working with the province on its class-action lawsuit, said the ruling in Oklahoma doesn’t have a direct impact on the case in the sense that a B.C. court is going to follow that decision automatically.

“But it’s important in that it gives us a successful road map. It describes a bunch of very important facts, and it shows that these companies have a part to play in addressing the crisis that they helped create.”

“So, it’s an important case, but it’s a step. We still have to run our own case.”

Whereas the Ontario-based class-action lawsuit is on behalf of alleged victims of opioids, the B.C. case represents provincial health insurers, although it covers all of the other provinces and territories.

“So at present if I win, I win for the whole country,” Mogerman said.