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$572million US Oklahoma court ruling againstJohnson & 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 andjailed after becomingaddicted tofentanyl 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 Oklahomajudge found Johnson & Johnson and its subsidiaries helped fuel the state's opioid crisis,orderingthe company to pay $572 million.

Johnson & Johnson says it willappeal. Meanwhile,OxyContin maker Purdue PharmaInc. 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 reportedTuesday, citing people familiar with the matter.

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

'Not gettoo excited'

"Wehave to be careful as to not gettoo excited about one court case in one state whereone judge foundone company liable," said lawyerAdam Tanel.

Tanel'sToronto-based lawfirm is representing Gebienin the Ontario-based$1.1 billion class-action lawsuitagainstsome of the biggest pharmaceutical names in the country, including Johnson & Johnson,Apotex, Bristol-Myers Squibband 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 totreat 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, includingGebien 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," Tanelsaid.

But there aretwo important and significant takeaways, he said.

The evidence used in these cases is often the same evidence, Tanel said.The evidence used to provecorporate malfeasance in Oklahoma isgoingto 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 thedrug manufacturerover-reported theefficacy of their products and under-reported dangers associated with their products, Tanel said.

Still,"this is going tobe a long battle against a great number of well-fundedpharmaceutical companies," Tanel said.

In Canada, the province of British Columbialaunched its own class-actionlawsuit 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 Pharmahassaid 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 Ebynoted that theOklahoma ruling is based on very similar facts argued in the government'slitigation.

"I think it would have been a more difficultsituation had the court in Oklahoma said, 'We don't see any liabilityhere,'" he said.

But the fact that a judge found that there's a serious problem with how this company conducted themselves, marketed these drugsand 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 itsclass-action lawsuit, said the ruling in Oklahomadoesn't have a direct impact onthe 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 itshows 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, althoughitcovers all of the other provinces and territories.

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