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Did Johnson & Johnson's subsidiary market opioids deceptively?

In September, a judge in Oklahoma ruled that Johnson & Johnson's subsidiary, Janssen Pharmaceuticals, caused a public nuisance with its two opioid medications, Duragesic and Nucynta. He also ruled that the company had marketed these drugs deceptively. The Judge ordered J&J and Janssen to pay $572 million in damages to the State.

Since the Oklahoma case was the first opioid-related case to go to trial, it was considered a bellwether for the thousands of similar cases filed nationwide. J&J and Janssen's loss prompted several opioid manufacturers to begin settling cases. J&J settled with two Ohio counties in October.

Other cases continue to move forward. In New Jersey recently, a judge refused to dismiss allegations that Janssen defrauded consumers when marketing Nucynta. However, the Judge dismissed New Jersey's public nuisance claim. If not reversed on appeal, that split outcome could make it difficult to hold the company responsible for the widespread harm of the opioid crisis in New Jersey, while allowing claims for individual harm to specific patients who became addicted to remain viable.

New Jersey alleges that Janssen deceptively marketed Nucynta using an aggressive sales program that involved conferences, office visits and unbranded websites. Janssen sold Nucynta to another company in 2015 for $1.05 billion.

Federal investigation moving forward

Meanwhile, Johnson & Johnson revealed at the end of October it had received grand jury subpoenas from the Eastern District of New York regarding its opioid medications. It is unclear what action the grand jury is considering.

According to J&J, the subpoenas were related to its Janssen Pharmaceuticals unit and involved the company's anti-diversion and distribution procedures related toJanssen's opioid medications. The company told Reuters it thinks the investigation is primarily in relation to how manufacturers and distributers of opioid drugs monitored prescriptions and reported on that monitoring, which is required under the federal Controlled Substances Act.

J&J also said it understood the context of the grand jury subpoenas to be as part of a "broader, industry-wide investigation."

Whether the argument is that opioid manufacturers created a public nuisance or violated criminal laws when they flooded the market with these powerful drugs, J&J and Janssen Pharmaceuticals isare two of the companies at the center of attention.

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