KTEP - El Paso, Texas

Opioid Litigation Brings Company Secrets Into The Public Eye

Mar 13, 2019
Originally published on March 13, 2019 9:19 am

America's big drugmakers and pharmacy chains are scrambling to respond to hundreds of lawsuits tied to the deadly opioid epidemic. Billions of dollars are at stake if the companies are found liable for fueling the crisis.

Even before judgments are rendered, companies like Purdue Pharma, Johnson & Johnson and CVS are already suffering damage to their reputations as evidence in civil suits reveals more about their internal workings.

"The narrative is clearly shifting on this story," said David Armstrong, a senior reporter with ProPublica, who has covered the drug industry for years. "People want some sort of reckoning, some sort of accounting."

One reason for the shift is that cities and states filing these suits are moving more aggressively to pull back the curtain on the drug industry's practices, urging courts to make internal memos, marketing strategies and reams of other documents public.

"Our next battle is to get the depositions and the documents that are being produced made available to the public, instead of everything being filed under confidentiality agreements," said Joe Rice, one of the lead attorneys bringing lawsuits against drug companies on behalf of local governments in Ohio.

A growing number of documents have already been released or leaked to the press, and many of the revelations they contain have been troubling. In internal memos, Purdue executives acknowledged that their prescription opioids are far more addictive and dangerous than the company was telling doctors. At the same time, company directives pushed sales representatives to get even more opioids into the hands of vulnerable people, including seniors and veterans.

Memos also show that Purdue executives developed a secret plan, never implemented, called Project Tango in which they acknowledged the escalating risk of the opioid epidemic. The program was allegedly designed to help Purdue profit from the growing wave of opioid dependency by selling the company's addiction treatment services to people hooked on products like its own OxyContin.

This increased transparency represents a big shift in the way opioid lawsuits are being handled. "We've done something that hasn't been done before," said Massachusetts Attorney General Maura Healey, who appeared in February on NPR and WBUR's program On Point.

Massachusetts is suing Purdue, like dozens of other states, and Healey fought successfully to make all the documents her office had uncovered public, without redactions. "What Purdue's own documents show is the extent of deception and deceit. What's important to me is that the facts come to light, and we get justice and accountability," Healey said.

Purdue Pharma declined to speak with NPR, but the drug industry has fought these disclosures at every turn. They describe the information in these documents as proprietary, asserting that it should be viewed by the courts as corporate property. For years, governments pursuing these cases mostly went along with those arguments.

In past opioid settlements, companies paid fines but insisted on gag orders. "The way it usually works is the language in the settlement requires either that the records be destroyed very quickly after the settlement or that they physically actually return the records to the drug company," said ProPublica's Armstrong.

That happened in 2007 when the Justice Department ended a criminal case against Purdue Pharma. It happened again a few years ago when the state of Kentucky settled a civil case with the company and that state's attorney general destroyed thousands of pages of documents. As a result, few people in the wider public knew how serious the allegations were.

As more information has been revealed, it's sparking fury. At a February hearing on Capitol Hill, Sen. Maggie Hassan, D-N.H., blasted industry executives. "Companies like Janssen and Purdue Pharma fueled this epidemic, employing deceptive and truly unconscionable marketing tactics despite the known risk, so you could sell more drugs to maximize your profits," she said.

Jennifer Taubert heads the Janssen Pharmaceuticals unit of Johnson & Johnson, which makes and sells opioids. The company faces escalating lawsuits over its products, but Taubert denied any wrongdoing at the hearing. "Everything that we have done with our products when we've promoted opioid products, which we stopped marketing a long time ago, was appropriate and responsible," she told lawmakers.

Yet according to the drug companies' internal documents, firms including Johnson & Johnson pushed unscientific theories about drug addiction. They allegedly did so as part of an effort to persuade doctors to prescribe even more opioids after patients showed signs of dependency.

This kind of industry backlash has happened before, such as when tobacco companies faced lawsuits in the 1990s. As those trials unfolded, the public learned for the first time about widespread corporate wrongdoing.

The difference here is that drug companies and their researchers have been seen by many in the public as healers and innovators, part of a trusted health care system.

There could be more revelations. With another big opioid trial set to begin in May in Oklahoma state court, attorneys are still fighting over millions of pages of documents, most of which the public has still never seen.

One possibility is that companies could agree to what is known as a global settlement of these opioid cases, paying billions of dollars in compensation in hopes of winning new secrecy agreements.

If that happens, says ProPublica's Armstrong, documents that help tell the full story of this drug epidemic could be destroyed or locked away for years. "I worry that we're going to lose all this valuable information about how we got to this point with this crisis, who knew what when," he said.

Copyright 2019 NCPR. To see more, visit NCPR.

DAVID GREENE, HOST:

The opioid epidemic claimed 70,000 lives in 2017. To put that in perspective, that is more than the number of people who died annually at the height of the HIV/AIDS epidemic. And the pharmaceutical industry is going to spend much of this year answering some hard questions. Many blame pharma for our country's opioid crisis. And this year, big drug makers, as well as pharmacy chains, are facing more than 1,500 lawsuits filed by state and local governments. Billions of dollars are at stake, and so are reputations. Johnson & Johnson, Purdue Pharma, CVS - those are just some of the companies targeted in these lawsuits.

Brian Mann from North Country Public Radio has been following these lawsuits for NPR and joins me. Hi, Brian.

BRIAN MANN, BYLINE: Hi, David.

GREENE: I mean, it's really hard to overstate the scope and scale of this crisis.

MANN: Yeah, it's painful. The Centers for Disease Control say there are still more than 100 Americans dying every day from overdoses related to prescription opioids. It's wrecked families. It's costing taxpayers tens of billions of dollars a year. So, you know, if companies lose some of these lawsuits, they could wind up paying huge damages.

GREENE: Well, and the drug companies, I mean, they're really paying another price already no matter how these lawsuits end up, right? I mean that there are internal company documents that are being made public, and some of them have been controversial, you've been finding.

MANN: Yeah, that's right. We're seeing internal memos, some for the first time. Purdue executives, for example, can be seen secretly acknowledging that their prescription opioids were far more addictive and dangerous than they were telling doctors. At the same time, company directives kept pushing sales, pushing the salespeople incredibly hard to get more opioids into the hands of vulnerable people, including seniors and military veterans.

We've also learned that Purdue Pharma executives developed a secret plan they called Project Tango, which they allegedly hoped might help them profit again from the growing wave of opioid addiction. The idea here was to sell addiction treatment services to some of the same people addicted to products like their own OxyContin.

And, David, I want to talk you through some of the voices I've been hearing about all of this. I'm going to start with Joe Rice. He's one of the lead attorneys suing big pharma. And he says it's important the public sees these documents.

JOE RICE: Our next battle is to get the depositions and the documents that are being produced made available to the public instead of being - everything being filed under a confidentiality agreement.

MANN: This approach represents a big shift in the way these lawsuits are being handled. It turns out state and federal governments have actually been taking big pharma to court over the opioid crisis for more than a decade, and they've been winning. In most of those past cases, companies paid fines. But the settlements involved gag orders.

DAVID ARMSTRONG: In Kentucky, Purdue Pharma produced two million pages of documents. And the attorney general, when they settled that case, agreed to destroy them.

MANN: That's David Armstrong, a reporter for ProPublica who's covered the opioid crisis for years, breaking big stories about the industry. The Kentucky case he's talking about was settled four years ago. He says the same thing happened back in 2007 when the Justice Department ended a major criminal case against Purdue.

ARMSTRONG: The way it usually works is when they settle these cases, the language in the settlement requires either that the records be destroyed very quickly after the settlement or that they physically actually return the records to the drug company.

MANN: Which means for more than a decade, no one in the wider public knew how serious the allegations against Purdue and these other drug companies were. But this time, states and cities suing these companies seem eager to sort of pull back the curtain.

(SOUNDBITE OF ARCHIVED BROADCAST)

MAURA HEALEY: We've done something that hasn't been done before.

MANN: Massachusetts Attorney General Maura Healey appeared last month on NPR and WBUR's program On Point. Her office is suing Purdue, and as part of the case, they fought to make all the documents they then covered public, without redactions. And they won earlier this year.

(SOUNDBITE OF ARCHIVED BROADCAST)

HEALEY: What Purdue's own documents show is the extent of deception and deceit. So, you know, what is important to me is that the facts come to light, and we get justice and accountability.

MANN: Purdue Pharma declined to speak with NPR. But the drug industry has fought these disclosures at every turn. They describe the information in these documents as proprietary, basically arguing it's corporate property. But as more and more information comes out, it's making people angry. New Hampshire Senator Maggie Hassan blasted industry executives at a hearing last month in Washington.

(SOUNDBITE OF ARCHIVED RECORDING)

MAGGIE HASSAN: Companies like Janssen and Purdue Pharma fueled this epidemic, employing deceptive and truly unconscionable marketing tactics despite the known risks so you could sell more drugs to maximize your profits.

MANN: Jennifer Taubert heads the Janssen pharmaceutical division of Johnson & Johnson, which makes and sells opioids. Here's how she responded.

(SOUNDBITE OF ARCHIVED RECORDING)

JENNIFER TAUBERT: Everything that we have done with our products when we promoted opioid products, which we stopped marketing a long time ago, was very appropriate and responsible.

MANN: But according to the drug company's own documents, firms including Johnson & Johnson pushed unscientific theories about drug addiction. They did so allegedly to convince doctors to prescribe even more opioids after patients showed signs of dependency. David Armstrong, the reporter with ProPublica, says this kind of disclosure is making it harder for the industry to protect its image.

ARMSTRONG: The narrative is clearly shifting on this story. People want some sort of reckoning, some sort of accounting.

MANN: And I should say, David, that we've seen this kind of thing before when tobacco companies were sued back in the 1990s, and the public then learned for the first time about widespread wrongdoing. The difference here is that these drug companies and their researchers have been seen by the public as healers and innovators who can be trusted to make products that help us when we're sick. And now that trust is taking a huge hit.

GREENE: I'm talking to reporter Brian Mann, who's been covering the opioid crisis for NPR. And, Brian, just listening to everything you've said there, it makes me wonder what's next. There's a trial coming up in Oklahoma, right?

MANN: That's right. And attorneys are still fighting over millions of pages of documents. And the people I've spoken to say there could be more smoking guns, more evidence of really bad behavior we don't know about yet. One real possibility, though, is that there could be what's known as a global settlement of these opioid cases, where companies agree to pay billions of dollars. If that happens, David, you know, history could repeat itself. The documents we haven't seen yet telling the full story of this epidemic, they could be destroyed or hidden away.

GREENE: Brian Mann with North Country Public Radio who covers these opioid lawsuits for NPR. Thanks, Brian.

MANN: Thank you, David.

(SOUNDBITE OF SLEEPSTREAM'S "BLUE (ASCENSION)") Transcript provided by NPR, Copyright NPR.