Creative demonstratives can powerfully frame an argument. However, attorneys sometimes shy away from using creative demonstratives in bench trials, perhaps out of fear of annoying the judge trying the case. In closings against Johnson & Johnson over its alleged role in Oklahoma’s opioid epidemic, however, Bradley Beckworth’s “game show” memorably framed key evidence during a long bench trial, and helped lead to a nine-figure judgment.
The State of Oklahoma sued Johnson & Johnson claiming its sale and marketing of opioids constituted a public nuisance that created a drug crisis in the state.
The trial, before Cleveland County District Court Judge Thad Balkman, was the first in a case brought by a state against opioid manufacturers. Nix Patterson’s Beckworth was part of a team of attorneys working with the State’s Attorney General’s Office.
Central to the case was the rate of opioid addiction, the extent of J&J’s knowledge on that rate, and how the company marketed the drug. During his closing, Beckworth relied heavily on graphs and charts to recap that data, but he went farther, creatively using that data to play a game of “Who Wants to Be a Pain Franchise Billionaire?”
Beckworth walked Judge Balkman through slides themed like the iconic “Who Wants to Be a Millionaire?” game show, including the show’s trademark sound effects.
“Who wants to be a pain franchise billionaire?” Beckworth asked. “That’s what motivated them all along.”
As he moves through the "game’s" key question: "What is the rate of iatrogenic addiction for opioids," Beckworth builds his argument that J&J aimed to confuse consumers and physicians alike on the issue, all in the name of profit. The wrong answers, on the board, Beckworth argued, are what the public and health professionals may have believed about the rate of opioid addiction.
Beckworth’s use of the old TV game show’s familiar elements is ingenious. For example, before replaying testimony of a defense expert on addiction rates, Beckworth suggests “Why don’t we just… phone a friend?” referring to the TV show’s classic help line for contestants. Later, Beckworth recaps the experts’ conclusions on addiction rates by “polling the audience,” another element of the TV show. Those conclusions estimated addiction rates as high as 100%. Meanwhile, he said, J&J offered a study that suggested rates of opioid addiction were as low .14%. “That’s egregious, reckless, dangerous conduct,” Beckworth said. “But that’s the conduct of a company that will do anything to save itself.”
Ultimately, Beckworth argued the real answer is that no one knows. “All they did was create utter confusion. But the truth is we stand here today just like we stood in 1996. Despite all of their misleading propaganda, no one knows,” Beckworth said.
“And so every time they came into a doctor’s office, or got into the media or got onto the Internet and said anything other than ‘These drugs are highly addictive,and if you take them long enough we don’t know what’s going to happen to you’ — if they did anything other than that, they lied.”
Beckworth’s masterful argument helped deliver a $572 million judgment.
Email Arlin Crisco at acrisco@cvn.com.
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