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Oklahoma opioid ruling could provide framework for Delaware lawsuit

Delaware Public Media

Legal experts say the court ruling against a drug manufacturer in Oklahoma may provide a pathway for Delaware in its similar lawsuit.

An Oklahoma judge earlier this week ordered Johnson and Johnson to pay the state more than $500 million for damages caused by misleading marketing of addictive and potentially lethal opioid pain medication.

This is the first decision in more than 2,000 complaints filed by states and municipalities across the country.

Delaware filed its suit against several entities in the opioid industry supply chain early last year. Delaware Department of Justice spokesman Mat Marshall says it’s among Delaware Attorney General Kathy Jennings’s top priorities.

“We applaud the judge’s decision in Oklahoma,” said Marshall. “Broadly, we see it as a validation of our belief that accountability for the opioid industry’s role in the epidemic is best sought in the courts."

John Culhane is Co-Director of the Family Health Law & Policy Institute at Widener University Delaware Law School. He notes, like Oklahoma, Delaware is making a public nuisance claim. He says he expects it's more likely cases like Delaware's will reach a settlement after Oklahoma's ruling.

“Certainly Delaware can point to the toll that opioid addiction and death has had on people that are addicted, on their sons and daughters, on law enforcement, on medical services, and to the extent they can demonstrate and tie specific costs to those things they stand in pretty good position,” said Culhane.

Additionally, Culhane notes the Oklahoma judge held Johnson and Johnson liable for only one year of damages. He says Delaware and others could use this to present cases worthy of even larger settlements.

“If attorneys reading this who are representing these cities and states in other lawsuits are smart, they will present stronger evidence of the long term effects of the opioid addiction cases and how it’s going to take them many years to remedy this,” said Culhane. “So you could be talking about many multiples of the damages that were awarded in this case.” 

From 2006 to 2012, drug manufacturers sold more than 276 million painkillers to First State pharmacies. The state’s overdose rate has risen for the past six years with 400 people dying last year in Delaware from opioid overdoses.

A federal trial involving claims made two counties in Ohio against the opioid industry is scheduled in two months.

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