When O'Melveny & Myers litigators say “We'll see you in court,” they're not bluffing.

Last year, firm lawyers tried (and won) the biggest merger case in a decade—AT&T and Time Warner.

Now, O'Melveny and local co-counsel Foliart Huff Ottaway & Bottom are defending Johnson & Johnson and its subsidiary Janssen Pharmaceuticals in the first big opioid case to go to trial. They face off at 9 a.m. today against lawyers for the state of Oklahoma before Cleveland County District Judge Thad Balkman. The case will test whether opioid makers can be held liable under public nuisance laws.

J&J is the only pharmaceutical company left standing after Oklahoma Attorney General Mike Hunter on Sunday announced that Teva Pharmaceuticals agreed to pay $85 million to settle allegations that it helped fuel the state's opioid epidemic. According to court papers, Teva was represented by Morgan, Lewis & Bockius.

In March, OxyContin maker Purdue Pharma represented by Dechert settled for $270 million.

Asserting joint and several liability, Hunter's office wants J&J to pay billions for a 30-year abatement plan to address the state's opioid crisis, funding everything from specialized drug courts to a 24/7 addiction and mental health helpline.

But J&J's legal lineup suggests that it's playing the long game.

A trio of lawyers will take the lead in the bench trial before Judge Balkman. Two of them—Larry Ottoway and Amy Fischer—hail from 20-lawyer Foliart Huff, which is based in Oklahoma City. Both lawyers earned their undergraduate and law degrees in Oklahoma and are prominent members of the state bar. Ottoway, for example, has tried more than 75 cases to verdict in Oklahoma and been named one of the state's “Top 10 Attorneys” by Oklahoma Magazine. 

J&J is also represented by Odom, Sparks & Jones in Norman, Oklahoma (population 122,843), where the trial is taking place.

Perhaps recognizing that filling the counsel's table with lawyers from Los Angeles and Washington, D.C. might not be a good look, only one O'Melveny lawyer is slated to play a lead role at trial: Sabrina Strong, who co-chairs the firm's consumer class actions practice.

Her law firm bio is telling: “Capitalizing on her unique combination of high-profile trial experience and sophisticated appellate work, Sabrina is regularly called upon to actively litigate cases as appellate counsel throughout trial for high-exposure matters across a wide variety of industries.”

It's a sign that J&J has its eyes on the prize—prevailing down the road on appeal. Which makes sense, because for J&J lawyers to win this trial—representing a giant out-of-state corporation before an elected judge in an area hit hard by opioid addiction—seems like a long shot.

That's not to say J&J's arguments aren't strong. On May 24, the company's legal team, which also includes O'Melveny's Stephen Brody, David Roberts, Charles Lifland and Jen Cardelús, filed a 119-page pre-trial brief that lays out their case.

Janssen marketed a fentanyl-based skin patch called Duragesic in Oklahoma from 1991 to 2008, and a tapentadol-based tablet called Nucynta from late 2009 until it sold the rights to the drug in April of 2015.

“These Janssen medications bear no responsibility of any kind for Oklahoma's opioid abuse crisis. None occupied more than a miniscule share of opioid pain medication prescriptions written by Oklahoma doctors,” the J&J lawyers wrote.

“In addition, Janssen designed both medications to be difficult to abuse and unattractive to would-be abusers,” they continued. They also note that all the medications “came with exhaustive FDA-approved labeling detailing their potential risks, including physical dependence, addiction, and death.”

In court papers, Oklahoma lawyers allege J&J “acted as the kingpin behind the public-health emergency, profiting at every stage.” The state blasts the company for marketing its own prescription drugs as well as supplying other drugmakers through its subsidiaries with the raw materials to make opioids.

Oklahoma is represented by plaintiffs firms Whitten Burrage; Nix Patterson and Glenn Coffee & Associates. The firms are entitled to a share of the state's recoveries starting at 25 percent for the first $100 million and bumping up from there.

J&J calls the kingpin argument “outrageous and sensationalist,” noting that the DEA “comprehensively regulates every aspect of supplying raw materials and ingredients for opioid medications.”

“Any claim for liability based on such sales would be preempted by the federal regulatory scheme. And likewise, no principle of Oklahoma law would authorize holding ingredient suppliers liable for marketing transgressions allegedly committed by the manufacturer of the finished product,” they said.

As for the rest of the claims—that J&J participated in a “multifaceted campaign to deceive the medical community, policymakers, and the public,” about the benefits and risks of opioid pain medications—company lawyers say there's no evidence of wrongdoing.

For example, they dispute the state's contention that drugmakers invented the idea that chronic pain is a significant problem worthy of medical attention. “[T]hat has been the consensus of the medical community since at least the 1970s, when the White House urged physicians, researchers, and regulators to develop new pain relieving options, including opioid-based medicines, to address this growing public-health problem,” they said.

As for J&J's marketing materials—consumer and medical informational websites about pain therapy and a brochure generally discussing pain therapy options for older adults—J&J lawyers describe them as “balanced, truthful, and innocuous,” and in no way responsible for triggering Oklahoma's opioid crisis.

“The state's effort impose this extraordinary unwarranted liability on Janssen and J&J is as unsound legally as it is factually,” they said, arguing it would “entail a radical expansion of public nuisance law, ignoring one hundred years of Oklahoma precedent.”

Moreover, they continued, “The state's boundless claim would trample the statutory definition of 'abatement,' as well as the constitutionally guaranteed rights to free speech, to petition the government, and to due process. And the state's claim would gut the requirement of causation— it simply ignores multiple acknowledged major contributors to the state's opioid abuse epidemic like diversion of lawful prescriptions, unlawful pill mills, and the enormous influx of illegal opioids and other dangerous drugs.”

No question these are strong arguments—but it still may take an appeal for them to carry the day.