Drug companies 'made a mockery' of opioid laws
San Francisco's opioid trial began this week, with drug companies insisting that Purdue Pharma should shoulder the blame for the crisis.
Three drug companies and a pharmacy insisted in a trial that began this week that they are not responsible for San Francisco’s opioid crisis. Instead, defense lawyers put much of the blame on a drug manufacturer that wasn’t there: Purdue Pharma, which is now in bankruptcy.
“Now, without the ability to try this case against Purdue, the people come into this court pointing at my clients and the other defendants in this case,” said Collie James, a partner at Morgan, Lewis & Bockius in Costa Mesa, California, in his opening statement on Tuesday for Teva. “But we are not Purdue.”
Related: Federal judge rejects $4.3B Purdue Pharma bankruptcy deal
Lawyers for the other defendants, which are Teva subsidiary Anda, AbbVie Inc.’s Allergan and Walgreens, also pointed fingers to Purdue. In 2019, California Attorney General Xavier Becerra, now U.S. Secretary of Health and Human Services, even blamed the opioid crisis on Purdue, James said. Walgreens used a similar defense argument in an opioid trial in Florida that began earlier this month, quoting the Florida attorney general’s own words.
Plaintiff’s lawyers on Monday laid out their case that the drug manufacturers used aggressive sales and marketing tactics downplaying the risks of opioid addiction, which caused “catastrophic consequences” for San Francisco. Those tactics created a “paradigm shift” in the treatment of pain, they said in an opening statement that lasted all day.
“The goal of the industry was to alter medical practice dramatically from what had been a conservative use of opioids for more than a century,” said Richard Heimann, of San Francisco’s Lieff Cabraser Heimann & Bernstein. “Today’s opioid crisis would not have occurred without the paradigm shifts caused by defendants and others in the pharmaceutical industry.”
But James Matthews, a Boston partner at Foley & Lardner who represents Anda, called the city’s case a “frontal assault” on government regulators and on the way medications are approved, prescribed and distributed in the United States.
“This case, and the way it’s framed, has the potential to be massively disruptive,” he said. “The stakes are very, very high. They’re not just high for my client, your honor. They’re high for medical professions. They’re high for the doctor/patient relationship. They’re high for every American in every corner of this country.”
The bench trial before Senior U.S. District Judge Charles Breyer in San Francisco is expected to last through June. It is being livestreamed on the court’s website.
On April 20, San Francisco City Attorney David Chiu announced that a fifth defendant, Endo, had settled out of the case for $10 million.
Much of Monday’s opening from the plaintiff’s attorneys focused on marketing materials the drug companies provided to doctors and the medical community about opiates, which are prescription painkillers.
Executives “made a mockery” of the laws, said Aelish Baig, a San Francisco partner at Robbins, Geller, Rudman & Dowd. Taking a page from the New York opioid trial, she displayed emails from one executive talking about a parody image of Kellogg’s Honey Smacks cereal in which the cartoon frog is injecting himself with a needle.
“Their ultimate concern was to drive sales, make quota and reach their goals,” said Baig.
At several points on Monday, she showed internal videos, which redubbed famous scenes from movies such as “A Few Good Men” and “Austin Powers” that Teva used to encourage its sales representatives to promote opioids.
“Teva will tell you it was just intended to be funny, but it might have been funny if it we were talking about far less dangerous products,” said Baig. “We live in a world where sales reps have to meet and exceed quota.”
James, the attorney for Teva, acknowledged the videos were “stupid.”
“Even I agree they were in poor taste and not funny, especially now,” he said. “Do they actually support the people’s case/? No.”
Plaintiff’s lawyers also focused on the failure of the drug companies to flag suspicious orders of opiates, despite federal regulations that require them to do so. But defendants countered that there was no evidence of the alleged suspicious orders and that, despite the known risks of opioids, the U.S. Food and Drug Administration and the National Institutes of Health approved the safety of their products, which are highly regulated.
“How can my client’s messaging be false and misleading when it is identical to what the FDA and the NIH were publicly stating at the exact same time?” James said. “It can’t be.”
The three drug companies also pointed out that their products made up a small share of the opioid market in San Francisco, according to their lawyers.
In the only other California opioid case, Orange County Superior Court Judge Peter Wilson issued a Nov. 1 decision against three California counties and the city of Oakland in a bench trial against Teva, Allergan, Endo and Johnson & Johnson. Wilson concluded that the FDA and the California Legislature knew about the potential addictive nature of opioids when approving them for use, and that the plaintiffs, represented by Motley Rice, failed to differentiate between legitimate uses of opioids and the illegal activities that led to addictions and overdoses.
Using language from that ruling, defense attorneys on Tuesday noted that San Francisco’s lawyers gave no indication in their opening about how many prescriptions were “medically inappropriate.”
“Claiming oversupply due to medically unnecessary scripts is one thing. Proving it is another,” said Allergan’s attorney, Hariklia Karis, a Chicago partner at Kirkland & Ellis. “The people have a fundamental problem in this case—and, that is, opioids were and continue to be legal for the treatment of pain.”
Walgreens’ attorney Kate Swift, of Chicago’s Bartlit Beck, argued that most abusers get their opioids from pill mills, drug dealers or the medicine cabinets of friends and family.
“Most don’t get the pills from a pharmacy at all,” she said.
Lawyers for San Francisco say their case is the first time defendants in all three parts of the opioid supply chain—manufacturer, distributor and pharmacy—will be represented at trial. Although a lengthy opioid trial involving the state of New York and two New York counties initially named defendants in all three groups, many of them settled before or during trial. Only Teva and Anda were found liable by a jury on Dec. 30.
The San Francisco trial is the latest bellwether case in the multidistrict litigation over the opioid crisis. In a previous bellwether case, U.S. District Judge David Faber of the Southern District of West Virginia wrapped up a bench trial last year between Huntington, West Virginia, and West Virginia’s Cabell County against the three largest distributors: McKesson, Cardinal Health and AmerisourceBergen. He has not yet issued a ruling. In another bellwether case before U.S. District Judge Dan Polster, who is overseeing the multidistrict litigation in Cleveland, a jury on Nov. 23 of last year rendered a verdict for two Ohio counties against CVS, Walgreens and Walmart, all of which are pharmacies. A second phase of that trial, scheduled for May 9, will determine damages.
The San Francisco trial also will happen in two phases, with the first portion focused on liability only. The lawsuit seeks funds to abate the public nuisance, as well as injunctive relief and civil penalties under California consumer law to repair the damage caused from the opioid epidemic and prevent such practices in the future.
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