A federal judge has ruled that a massive lawsuit that blames drug manufacturers, distributors, and pharmacies for the American opioid epidemic will proceed to trial.
“It is accurate to describe the opioid epidemic as a man-made plague, twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated,” blasted U.S. District Judge Dan Polster of the Northern District of Ohio in his ruling last month.
This federal trial will take place in September.
The class action combines no fewer than 600 claims by local and state governments against the opioid industry. While the more cynical among us might think this is nothing but a cash grab by our nation’s prosecutors, the facts show that this is the least we can do to hold these corporate criminals accountable.
Take Purdue Pharma, the first manufacturer of OxyContin and the most high-profile defendant in this case. The company has reportedly made $35 billion from the sale of OxyContin since its introduction in 1995, mostly thanks to an early marketing campaign that sold the painkiller as a pill to “start with and to stay with” that was “virtually non-addictive.” Addiction, Purdue said, occurred with less than 1 percent of patients. Clinical trials have since contradicted that bold claim, but that hasn’t stopped Purdue or other manufacturers from pushing this lie for the last two decades. Meanwhile, some 200,000 people have died from overdoses of OxyContin or other prescription painkillers since 1999.
This campaign of deception wasn’t limited to Purdue. A report by the Center for Public Integrity and the Associated Press found that, from 2012 to 2017, the top five opioid manufacturers gave more than $10 million to various seemingly independent, non-profit advocacy groups, which in turn promoted the painkillers.
That doesn’t even include the collective $14 million spent by opioid manufacturers for advertisements in medical journals in 2011 alone. Nor does it include the thousands of doctors who accepted lucrative payments from opioid manufacturers for speaking engagements and consulting.
Not coincidentally, an investigation by CNN and Harvard researchers demonstrated a correlation between the money drug companies paid to doctors and the significant numbers of opioids they prescribed to their patients. In some cases, doctors received six-figure compensations from drug companies.
Hence, the current federal effort has a number of parallels to past lawsuits against tobacco companies. But the shameless promotion of opioids represents a new level of depravity. As far back as the 1930s, tobacco companies were hiring doctors to make false claims about cigarette smoking in advertisements. However, they never enlisted an army of well-paid doctors to actually prescribe their cigarettes.
After OxyContin’s introduction in 1995, DEA officials began taking note of Purdue’s aggressive tactics, which were unprecedented for a Schedule II drug—including promotionally branded giveaways to professionals in the health care field. Alas, Rudy Giuliani and his consulting firm proved to be an ironic but highly effective advocate for their company. During his well-paid stint in 2002, Giuliani met with DEA officials on multiple occasions and convinced them to ease some planned restrictions on OxyContin.
Two years later, Eric Holder, the former attorney general, while working for Covington & Burling, helped negotiate a meager $10 million settlement with the state of West Virginia over OxyContin. Importantly, that agreement allowed Purdue to withhold documents and testimony related to its marketing practices.
Likewise, with Mary Jo White, the former U.S. attorney for the Southern District of New York, at their side, Purdue Pharma executives avoided serving prison time in 2007. The company and three executives were fined $630 million and sentenced to three years of probation and 400 hours of community service over their aggressive and deceptive marketing of the drug.
Such a relatively light punishment clearly didn’t deter the company’s aggressive practices. By 2016, Purdue Pharma had increased its sales force to 700 reps, up from 300 in 2007. OxyContin’s sales peaked in 2010 with more than $3 billion of revenue.
So Purdue Pharma has made in the range of over $35 billion in sales from OxyContin over the last 24 years. As a point of comparison, the world’s most notorious drug trafficker, Joaquín “El Chapo” Guzmán, generated an estimated $16 billion fortune, with only a portion of his drug empire derived from the profits of heroin.
There is a legitimate place for prescription opioids in the health care industry. The problem is that companies such as Purdue have consistently fought legal battles to stymie transparency. That includes subpoenas related to their marketing campaigns and doctors with unusually high prescription rates.
Over the years, many pill mill operators and shady doctors have been sent to prison for crimes related to prescription opioids. Yet the big fish at the top of the corporate hierarchy have yet to see the inside of a prison cell.
Granted, the blame doesn’t fall solely on the manufacturers. Major pharmacy chains, such as Walgreens and CVS, have failed to properly monitor and report suspicious activity. For instance, a lawsuit filed by the state of Florida found that 2.2 million opioid pills were dispensed in a single Walgreens store in Hudson, a town of 12,000 people.
Our nation’s drug distribution companies have also ignored glaring red flags. Last year, the U.S. House Committee on Energy and Commerce found that 780 million hydrocodone and oxycodone pills were sent to the state of West Virginia between 2007 and 2012. That’s 433 pills per person!
The subsets within these statistics are even more outrageous. Case in point: over a nine-year period, McKesson and Cardinal Health delivered 12.3 million opioid pills to a single pharmacy in Mount Gay-Shamrock. Mind you, that is a town with fewer than 2,000 residents. Numerous other states can point to similar examples.
Despite being presented with precise evidence of extreme corporate negligence, none of the executives from the top three distributors (McKesson, AmerisourceBergen, and Cardinal Health) admitted to contributing to the opioid epidemic during their testimonies before Congress last May.
Instead, the chairman of the board of a much smaller private drug distributor, Miami-Luken, acknowledged its company’s complicity. That company’s role was much less scandalous. Miami-Luken shipped 20 million doses of oxycodone and hydrocodone to pharmacies in West Virginia between 2007 and 2012, whereas McKesson, AmerisourceBergen, and Cardinal Health were responsible for 423 million.
Those three companies, which are ranked sixth, twelfth, and fourteenth respectively in the Fortune 500, can operate in this brazen manner for a few obvious reasons. They can easily withstand the relatively small fines assessed by various government agencies. The profits more than offset the costs.
Also, they have the campaign financing and lobbying resources to wipe out any kind of credible threat to their opioid profits. Take for example what happened with the West Virginia attorney general, Patrick Morrisey.
Morrisey claimed that he would recuse himself from an investigation of Cardinal Health due to his conflicts of interest, such as $8,000 of campaign donations and $250,000 from lobbying work for a trade group that represents Cardinal Health. Not to mention that his wife, Denise Henry, is a partner with the D.C. firm Capitol Counsel, which represented Cardinal Health from 1999 to 2016.
Nonetheless, Patrick Morrisey met with representatives of Cardinal Health during the investigation that resulted in a $20 million settlement in 2016. Subsequently, a judge ordered Patrick Morrisey to release records of his communications with the company, but he hasn’t complied.
It’s fairly obvious how campaign financing and lobbying can influence legislators. However, government agencies, such as the DEA, should theoretically be immune from this influence. That hasn’t been the case.
There’s been a revolving door of former DEA agents who go on to assist the pharmaceutical industry in limiting the agency’s regulatory power. In fact, 42 former DEA officials are working at pharmaceutical companies or law firms that represent them, according to The Washington Post.
That kind of influence certainly played a role in the DEA’s decision to allow the industry production quota for oxycodone to increase by 1,300 percent over a 20-year period. And the results have been disastrous. According to the CDC, there were nearly 218,000 deaths in the U.S. from prescription opioids from 1999 to 2017. The rate of death was five times higher in 2017 than in 1999.
A bill passed in 2016, known as the “Ensuring Patient Access and Effective Drug Enforcement Act,” may have been the industry’s coup de grâce. Now the DEA’s ability to block drug companies from making suspicious transactions involving controlled substances is essentially nullified. And in the end, special interest groups were able to co-opt Congress for a low investment of $1.5 million. That price tag represents the cumulative donations by political action committees to the sponsors and cosponsors of the bill.
So expect some seriously high-powered PR campaigns by the drug industry ahead of September’s trial. But don’t be swayed. These kinds of efforts are two decades too late and several billion dollars short. They can’t scrub the fact that these companies are complicit in the deaths of thousands of Americans.
Brian Saady is the author of four books. That includes his series, Rackets, which chronicles the legalization of drugs and gambling, and the decriminalization of prostitution. You can check out his podcast and follow him on Facebook and Twitter.