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A case brought by the Oklahoma attorney general is expected to be the first against a drug company making prescription opioids to go to trial. A judge has ruled it can be televised.
This story was originally published by Stateline, an initiative of The Pew Charitable Trusts.
In the legal battle to hold drug companies responsible for the country’s raging opioid epidemic, media attention largely has focused on a national lawsuit set for a late October trial in federal court in Cleveland, Ohio.
But it may be upstaged by a lesser-known opioid case: Oklahoma v. Purdue Pharma, scheduled for trial in May in the Cleveland County Courthouse in Norman, Oklahoma.
The Ohio case, known as the National Prescription Opiate Litigation, is a consolidated case that includes federal lawsuits brought by more than 1,500 counties, municipalities, hospitals and others, and features a brief from the U.S. Justice Department.
But attorneys general in most states have opted to file independent lawsuits against drug companies, rather than share the stage with hundreds of other cases. In total, at least 330 opioid-related cases are pending in lower courts in at least 45 states.
Oklahoma’s case is slated to be the first to go to trial.
With similar legal concepts and evidence, the Oklahoma trial could presage many of the arguments the jury may be presented in the national case in the fall. And if the drug companies in Oklahoma offer a settlement, the proposal could precipitate a national settlement, some legal experts said.
At a minimum, the Oklahoma trial would for the first time give the press and the American public full access to evidence and arguments aimed at showing that drug companies flooded local markets with opioid painkillers for more than a decade while knowing that the pills were highly addictive.
In the case, which was filed in 2017, attorneys representing Oklahoma will present evidence and expert testimony to support the state’s claim that OxyContin, Vicodin, Percocet and other prescription pain medicines that drugmakers falsely claimed were safe led to the deaths of thousands of Oklahomans.
The state also will argue that the drug companies’ “deceptive and misleading” marketing campaigns caused “a devastating public health crisis” in the state, putting “an immense financial burden on Oklahoma, its businesses, consumers, communities and citizens,” according to the original petition in the case.
In previous state and federal lawsuits, Purdue and other opioid manufacturers have noted that the drugs they produced were approved by the U.S. Food and Drug Administration and argued that they had a legitimate purpose. They also maintained that the doctors and patients who misused the pills should be held accountable for the addiction and overdoses that resulted.
Nearly 218,000 people died in the United States from overdoses related to prescription opioids between 1999 and 2017, according to the Centers for Disease Control and Prevention. And the opioid addiction and overdose epidemic of the last decade has cost the nation an estimated $79 billion a year.
“The Oklahoma trial will pull the cover off the pharmaceutical companies’ fraudulent and deceptive marketing practices,” Michael Burrage, one of the state’s attorneys, said in an interview. “The case will show that it was all about the money. That’s all they cared about, was the money.”
Since the presiding judge in the Oklahoma case ruled that television cameras may be used in the courtroom, every detail of what promises to be a dramatic trial could be broadcast to the American public, potentially affecting the outcome of any future opioid trials.
“Allowing cameras in the courtroom will give Oklahomans across the state and individuals from across the country a firsthand account of the proceedings,” Republican Oklahoma Attorney General Mike Hunter wrote in a 2018 press statement. “It will also allow individuals to see how these companies maliciously deceived the nation while creating the deadliest man-made epidemic in United States history.”
Setting a Precedent
The Oklahoma lawsuit seeks to hold Purdue and three other opioid-makers, Allergan, Cephalon and Janssen Pharmaceuticals, responsible for economic damages to the state and its residents stemming from the opioid addiction and overdose crisis.
“These companies have waged a fraudulent, decade-long marketing campaign to profit from the anguish of thousands of Oklahomans,” Hunter said in a 2017 press announcement after the case was filed.
Oklahoma was not the first state to sue opioid-makers. West Virginia, Kentucky and the federal government sued opioid-makers in the early 2000s.
In 2007, Purdue executives pleaded guilty in the federal case to falsely advertising OxyContin as “less addictive” and “less subject to abuse and diversion” than other pain medications. The company agreed to pay $600 million in criminal and civil fines to the federal government, and $20 million to 26 states and the District of Columbia.
In the latest round of litigation, nearly all states have filed lawsuits against drugmakers, distributors and retailers. Most of the cases do not have set court dates.
Oklahoma wanted its trial to be scheduled sooner rather than later, and the presiding judge agreed. “We wanted an Oklahoma judge and an Oklahoma jury deciding these issues,” Burrage said. “And that’s what we got.”
In the federal opioid case slated for trial in October, U.S. Northern District of Ohio Judge Dan Polster has said he intends to push for a swift settlement. The deal would include money to help treat the more than 2 million people addicted to opioids, and it also would put restrictions on pharmaceutical companies aimed at preventing more people from becoming addicted.
Already, doctors are prescribing fewer pain pills, reducing national opioid consumption by more than 20 percent since 2011, according to IQVIA, a company that tracks retail sales of prescription drugs. And last year, Purdue said it would stop marketing its opioid painkillers directly to doctors.
Those actions likely stem at least in part from the media attention the litigation already has drawn, combined with the threat of a monetary settlement in the cases, wrote Yale Law School professor Abbe Gluck in a 2018 analysis of the cases.
An Oklahoma trial, particularly if televised, could apply even more pressure on opioid-makers. “Oklahoma becomes essentially a bellwether trial—as one case goes, so too would you expect the others to go,” said Andrew Pollis, a litigation expert at Case Western Reserve University Law School in Ohio.
Cleveland County, Oklahoma, Judge Thad Balkman in 2017 denied opioid-makers’ motions to dismiss the state’s lawsuit.
“If I were the defendants’ attorney, I would push very hard to postpone the Oklahoma trial until after the national litigation,” Pollis said. “But the judge would have to approve it.”
By postponing the trial, drug companies could benefit if the opioid crisis begins to ease. Plaintiffs’ cases—and the publicity surrounding them—also could wane over time.
In the meantime, settling the Oklahoma case could be challenging, Pollis said, because the drug companies are unlikely to want to settle with one government while the multidistrict national litigation still is pending.
“It’s a Rubik’s Cube with no solution,” Pollis said. “Judge Polster has no jurisdiction over the Oklahoma case, and the judge in Oklahoma has no jurisdiction over the multidistrict litigation in Ohio.”
Still, Oklahoma attorney Burrage told Stateline that the trial is intended, in part, to shed light on evidence about the drugmakers’ marketing schemes that otherwise would remain hidden under a national settlement.
“We intend to prove that all of the defendants contributed to a public nuisance,” he said, “and that they’re all responsible for the whole ball of wax.”
Purdue said in a statement to Stateline, “While Purdue Pharma’s opioid medicines account for less than 2 percent of total prescriptions, we will continue to work collaboratively with the state toward bringing meaningful solutions forward to address this public health challenge.”
In January, a judge made public a lawsuit that Democratic Massachusetts Attorney General Maura Healey filed in 2018 against Purdue and its owners.
In the newly released document, Healey alleges that the Sackler family, which owns Purdue, knew that their product was highly addictive and yet directed salespeople to pressure doctors to prescribe higher and higher doses of opioid pain medicines. The petition also alleges that the family had planned to find a way to profit from the treatment of the legions of patients who would become addicted to their drugs.
A statement from Purdue called the release of the Massachusetts complaint an attempt to “single out Purdue, blame it for the entire opioid crisis, and try the case in the court of public opinion rather than the justice system.”
Although the Sackler family has sought to remove itself from the national opioid litigation, a judge ruled in the Oklahoma case that the state’s attorneys could interview family members.
A Risky Proposition
The number of opioid painkiller prescriptions dispensed in the United States grew steadily from about 216 million in 2006 to a 2012 peak of more than 255 million and a rate of 81 prescriptions for every 100 people, CDC data shows.
With fewer than 4 million residents, Oklahoma ranks 28th in the nation for drug overdose deaths. But its rate of opioid painkiller prescriptions ranks sixth, behind Alabama, Arkansas, Tennessee, Mississippi and Louisiana.
In 2015, Oklahoma doctors wrote more opioid prescriptions than there are residents, compared with a nationwide rate of about 7 in 10, according to data analyzed by the CDC.
But Oklahoma’s efforts—including a prescription drug monitoring database, strict opioid prescribing rules for medical professionals, and public health warnings—resulted in a more than 30 percent reduction in the rate of pills per capita between 2012 and 2017.
That, and the relatively low prevalence of fentanyl in Oklahoma’s illicit drug market, resulted in the state’s overdose deaths dropping by 7 percent in 2017, making it one of only a handful of states where mortality rates may have peaked, said Andrew Kolodny, co-director of opioid policy research at the Brandeis University Heller School for Social Policy and Management in Massachusetts.
More than in most other states, opioid overdose deaths in Oklahoma are due to prescription painkillers, rather than heroin or fentanyl.
In 2016, 322 Oklahomans died from prescription painkillers, compared with 98 who died from fentanyl and other synthetic drugs, and 53 from heroin. Nationwide, more than half of all overdose deaths were from heroin and fentanyl, CDC data shows.
In the opioid case, Oklahoma’s decision not to wait on the sidelines for a potential national settlement puts the state at some risk. It could miss out on a share of what might be a hefty settlement, which could be used for further abatement of the epidemic, said Richard Ausness, a law professor at University of Kentucky who has been following the opioid lawsuits.
If Oklahoma loses the case at the highest level of appeal, it would not be eligible to take part in a national settlement, he said.
“There’s a lot of freeloading going on out there: If a state doesn’t want to be bothered trying an opioid case, it can settle directly or hop on to a global settlement,” Ausness said. “Oklahoma is not taking that route.”
As in most states, the Oklahoma attorney general’s motivation in pursuing the case may have been largely political, Ausness said. As elected officials, attorneys general tend to want credit for cracking down on the bad guys, rather than passively taking part in national litigation.
And the outside attorneys representing states typically do so on a contingency basis, so Oklahoma and other states that are suing drug companies aren’t necessarily losing money by pursuing the cases, he added.
Still, if Oklahoma wins its case, it could settle certain legal arguments against drugmakers and push the companies closer to a national settlement.
“In the tobacco cases of the 1990s, states kept hammering and hammering until enough dirt came out that the companies wanted to settle,” Ausness said. “If the Oklahoma case goes to trial, which no doubt would turn into a circus, it could have the same effect.”