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It’s no surprise that opioid use and addiction is out of control in this country. Just pick up any newspaper, magazine of current events, or turn on the news. Almost daily you’ll read or hear about a frightening new statistic showing the rise of opioid use in America. Perhaps more frightening is the number of individuals from all walks of life, that have become addicted to opioids via medication legally prescribed by medical professionals. As the battle against opioid addiction continues to be fought by local, state, and federal authorities, a new tactic is emerging, targeting manufacturers of opiate based medications.
Similar to the approach taken by those prosecuting the tobacco industry in the mid-90’s, lawyers for the prosecution are arguing that opioid manufactures are creating a “public nuisance” by downplaying the harmful side effects of opioid use. This, in turn, is creating an undue financial hardship on state agencies that are forced to deal with the skyrocketing health and societal impact of a growing population of addicts.
In 2001, West Virginia successfully sued Purdue Pharma, over their aggressive marketing and distribution of OxyContin. Although only minimally successful in terms of financial recovery by the state (10 million dollars), it was a first step toward holding manufacturers, and later, their management, responsible.
In a further victory, in 2019, the State of Oklahoma won a landmark decision over Johnson & Johnson, when the court found them liable for their part in a national public health crisis. J & J was determined to have intentionally downplayed the danger, while overselling the benefits, of opioid products. The company has been ordered to pay the state, $572 million in compensation. Although these two victories are notable, there is no guarantee of future success in any of the more than 2000 ongoing similar legal actions currently pending within the industry.
Since the viability of continued success in these cases remains highly questionable, attorneys had to take a stronger angle of attack in their struggle to hold manufacturers to some degree of accountability. One challenge facing them is the undeniable fact that opioids are a valuable and useful tool in the management of severe pain. Combined with flawed, yet highly quoted studies that seemed to show that most opiate users did not become addicted, the task of assigning accountability is, at minimum, challenging.
As investigators looked at the quantity of opioids that were being prescribed, the number was astounding. While the total opioid prescribing peaked in 2010, the United States remains in the upper echelon of prescribing countries. Initially, responsibility was assigned to the doctors who wrote those prescriptions. However, as doctors became more aware of the harm of over-prescribing, both in terms of quantity, and need, the numbers began to fall.
Manufacturers such as Purdue Pharma, Insys Therapeutics, Johnson & Johnson, McKesson and several others, make a substantial portion of their profits from the sale of prescription opioids. In order to stem this loss in revenue, manufacturers often heavily promote their product to doctors, emphasizing effectiveness while downplaying any negative impact, the highly addictive nature of opioids being the most known. Additionally, while pharmaceutical manufacturers may not directly pay doctors to prescribe their product, there is no restriction on paying them to promote their wares in paid speaking engagements, consulting contracts, and conference attendance. It’s this type of backdoor compensation that lawyers have seized on, as they launched a new offensive, targeting the directors of these manufacturers.
In a major victory this past November, U.S. Attorneys successfully won a criminal conviction of Insys Therapeutics CEO, John Kapoor, finding him and several other members of the company, guilty of criminal conspiracy to bribe doctors to prescribe his company’s medication, even when medical need was not indicated. By using the RICO statutes (Racketeer Influenced and Corrupt Organizations Act), attorneys have served notice to the pharmaceutical industry that criminal accountability will be assigned, to those whose greed fuels the opioid epidemic in this country.
While these lawsuits will undoubtedly continue to be hard battles to win, their importance as a part of the overall strategy to fighting the war against the opioid epidemic is clear. Money won by the states can be applied to improve access to both treatment and prevention, areas both equally necessary to not only fighting the war, but winning it.
