Enriqguez v. Johnson & Johnson

MATTHEW ENRIQGUEZ, individually and on behalf of all others similarly situated Plaintiff, v. JOHNSON & JOHNSON; JANSSEN PHARMACEUTICALS, INC.;ACTAVIS PHARMA, INC.; and ACTAVIS LLC, Defendants.

Civil Action DOCKET NO. CAM-L-4677-18

SUPERIOR COURT OF NEW JERSEY LAW DIVISION / CAMDEN COUNTY

October 10, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

CBLP Action

OPINION

Joshua Morris Neuman, Esquire, Kilcoyne & Nesbit, LLC, Counsel for Plaintiff Matthew Enriguez, individually and on behalf of all others similarly situated.

Ashley Keller, Esquire and Travis Lenkner, Esquire, Keller Lenkner LLC, pro hac vice, Counsel for Plaintiff Matthew Enriguez, individually and on behalf of all others similarly situated.

William S. Consovoy, Esquire, Consovoy McCarthy Park PLLC, pro hac vice, Counsel for Plaintiff Matthew Enriguez, individually and on behalf of all others similarly situated.

Martin B. Gandelman, Esquire and Walter R. Krzastek, Esquire, Calcagni & Kanefsky, LLP, Counsel for Defendants, Johnson & Johnson and Janssen Pharmaceuticals, Inc.

Ross B. Galin, Esquire, and Amy Laurendeau, Esquire, O'Melveny & Myers LLP, pro hac vice, Counsel for Defendants, Johnson & Johnson and Janssen Pharmaceuticals, Inc.

Harvey Bartle, IV, Esquire, Morgan, Lewis & Bockius, LLP, Counsel for Defendants, Actavis Pharma, Inc. and Actavis LLC.

Rebecca Hillyer, Esquire and Steven A. Reed, Esquire, Morgan, Lewis & Bockius, LLP, pro hac vice, Counsel for Defendants, Actavis Pharma, Inc. and Actavis LLC.

STEVEN J. POLANSKY, P.J.Cv.

INTRODUCTION

Plaintiff, Matthew Enriguez, is a New Jersey resident who alleges that he purchased health insurance from Blue Cross Blue Shield. Plaintiff asserts that as a result of the conduct of Defendants, New Jersey health insurers paid higher costs for both opioids and addiction treatment, resulting in increased costs to health insurers. Plaintiff alleges that health insurers passed these higher costs on to their insureds, causing class members to pay higher costs for health insurance.

Defendants, Johnson & Johnson Pharmaceuticals, Janssen Pharmaceuticals, Inc., Actavis Pharma, Inc. and Actavis LLC, have filed the present motion seeking to have the court dismiss with prejudice Plaintiff's Complaint for failure to state a claim pursuant to R. 4:6-2(e). The Actavis Defendants further assert that they only manufacture generic opioid medications and do no promotion for those medications. Janssen Pharmaceuticals, Inc. asserts that it is a separate corporate entity which does not manufacture opioid medications.

BACKGROUND

This matter arises from the opioid epidemic that has had far-reaching consequences, New Jersey has been hit particularly hard by this crisis. In 2016, there were 1,409 opioid-related deaths in New Jersey alone. New Jersey Opioid Summary, National Institute on Drug Abuse, available at https://www.drugabuse.gov/drugs-abuse/opioids/opioid-summaries-by-state/new-jersey-opioid-summary (last visited June 28, 2019). With this rise in opioid-related deaths and addiction has come a swell of litigation seeking to hold pharmaceutical companies responsible for their part in creating, distributing and marketing opioids. See, e.g., In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir. 2012).

The opioid epidemic has become a plague upon modern society. This crisis resulted in 42,249 opioid overdose deaths in 2016 and 47,600 opioid overdose deaths in 2017. 2018 Annual Surveillance Report of Drug-Related Risks and Outcomes, United States Centers for Disease Control, National Center for Injury Prevention and Control 2018, https://www.hhs.gov/opioid/about-the-epidemic/index.html (last visited Aug. 7, 2019). In 2016, 40% of opioid deaths involved prescription opioids. Id. The opioid epidemic has had a devastating effect upon families throughout the country. These statistics reflect only a small portion of the problem. The American Society of Addiction Medicine estimates that in 2016, 20.5 million Americans suffered from a substance abuse disorder. At least two million of these individuals suffered a substance abuse disorder involving the use of prescription pain medication. Opioid Addiction 2016 Facts and Figures, American Society of Addiction Medication, available at https://www.asam.org/docs/defauIt/source/advocacy/opioid-addition-disease-facts-figures.pdf (last visited Aug. 7, 2019) (citing Center for Behavioral Health Statistics and Quality 2016).

This litigation falls within four main groups of lawsuits—those brought by individuals directly harmed by deceptive marketing (such as addicts), those brought by third party payors (such as employers and insurance companies), those alleging to have paid inflated drug prices or who purchased a more expensive drug or off-label drug because of the deceptive marketing practices, and those brought by persons claiming to have paid higher insurance costs as a consequence of misconduct by manufacturers, distributors and marketers.

Courts have found cases asserting third party payor claims or inflated drug price claims deficient based upon a lack of causation or failure to plead cognizable injuries, See, e.g., Sidney Hillman Health Ctr. Of Rochester v. Abbott Labs., 873 F.3d 574, 578 (7th Cir. 2017) (noting thata long causation chain negated proximate cause in a myriad of third party payor cases); In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 253 (3d Cir. 2012) (affirming the District Court of New Jersey's dismissal of a consumer's claim for paying for drugs at inflated prices due to lack of causation); In re Neurontin Mktg. & Sale Practices & Prods. Liab. Litig., 257 F.R.D. 315, 326 (D. Mass. 2009) (questioning whether Plaintiffs, who claimed that Defendants' deceptive marketing resulted in them purchasing a drug for an off-label use they would not otherwise have purchased, would be entitled to class certification due to issues related to the alleged misrepresentations and causal nexus between those representations and the Plaintiffs' injuries). As for the final claim of increased insurance premiums, this claim is the newest to enter the opioid litigation sphere. There are no reported decisions directly on point.

Plaintiff's claim is based upon alleged inflated insurance premiums paid by Plaintiff because his insurance company paid for opioid medication or addiction rehabilitation treatment for other insureds. Plaintiff is not the first to make such a claim. Plaintiff's complaint is almost a mirror image, both in factual allegations and legal assertions, to a class action complaint filed in the District in New Jersey, Sardella v. Purdue Pharma. et al. 3:2018cv08706, which was transferred to the Northern District of Ohio where federal opioid cases are being heard. In 2018, class action lawsuits were filed in five different federal courts, including New Jersey, charging manufacturers and distributors alike with fraudulent and deceptive marketing practices, negligent distribution, and other violations of state law. Thomas Sullivan, Opioid Class Action Suit Filed in Five States, POLICY & MEDICINE, May 14, 2018, https://www.policymed.com/2018/05/opioid-class-action-suit-filed-in-five-states.html (last visited September 20, 2019). These lawsuits, strikingly similar to this suit filed by Plaintiff, allege that defendants knew the risk of opioids,engaged in unlawful and unfair misconduct, and that this misinformation campaign resulted in a dramatic increase in opioid use, thus raising health insurance costs for all insureds.

Plaintiff asserts that Defendants employed a multi-pronged and multi-tiered scheme aimed at misinforming doctors and patients of the risks associated with opioid use. This scheme, in turn, allegedly caused more doctors to prescribe, and more people to take, opioids, costing insurance companies money by paying for opioids and related addiction treatment, thus raising insurance costs for Plaintiff and those similarly situated to Plaintiff. The alleged conduct of the pharmaceutical companies includes direct communications with doctors and patients through in-person visits and advertisements, even though Defendants had previously been reprimanded by the United States Food and Drug Administration (FDA) for misrepresenting and minimizing the risks associated with certain opioids.

Specifically, Plaintiff's Complaint alleges that in 2011, opioid manufacturers spent more than $14 million dollars on journal advertising for opioids. Of this $14 million, $4.9 million was spent by Defendant Janssen. It is further alleged that in 2014, opioid manufacturers spent $168 million dollars on detailing branded opioids to doctors.¹ A total of $34 million dollars was allegedly spent by Defendant Janssen and $2 million dollars by Defendant Actavis.

Plaintiff further asserts that Defendants retained and funded third-party organizations to communicate with doctors and patients in order to avoid scrutiny by the FDA, and that such marketing often contradicted information contained in materials provided to and reviewed by theFDA. These third-party organizations, under the control of Defendants, created materials unsupported by scientific evidence and in stark contrast with Centers for Disease Control and Prevention (CDC) guidelines. Specifically, the Pain Care Forum, created by the American Pain Foundation, a third-party organization controlled by Defendants, worked to ensure that any FDA studies on opioids did not produce results deemed too negative. It also included enlisting and funding independent medical professionals, paid to serve as consultants and as advisors, to assist in spreading incorrect information about opioids through continuing medical education programs and other means. These professionals further helped develop treatment guidelines which strongly encourage the use of opioids over other methods of treatment for chronic pain.²

The alleged false marketing scheme did not end there. Plaintiff...