Opioid crisis: cities, states use tobacco playbook to sue Big Pharma


Palm Beach County’s lawsuit against key pharmaceutical companies states that its case is about runaway corporate greed where profits were put above the health and well-being of consumers duped into believing addictive opioid painkillers were safe.

Sound familiar? It should. It’s torn from the same playbook that brought another powerful industry — Big Tobacco — to the table and extracted billions of dollars two decades ago.

“There are a lot of parallels to the tobacco lawsuits both in terms of the denials of the defendants and in the respect that the drugs were addictive,” former Delray Beach Mayor Carey Glickstein said. “And there is culpability in the harm they created.”

West Palm Beach litigator Ted Babbitt says it’s a good strategy: “It worked against tobacco, and I think it’s going to work for them. It’s costing the rest of us, the citizens of these states and cities, to treat these people.”

Delray Beach in December became the first municipality in Florida to sue opioid manufacturers in search of reparations, Glickstein said. The tourist and restaurant mecca is now part of a legion of cities and towns across the nation targeting pharmaceutical companies, laying blame for the opioid epidemic at the industry’s feet.

Palm Beach County — which has seen a 314 percent increase in overdose deaths over five years — filed its own lawsuit in April. Pam Bondi, Florida’s attorney general, joined the movement this month on behalf of the state, filing a lawsuit that accuses pharmaceutical companies of racketeering.

Purdue Pharma, the manufacturer of the painkiller OxyContin, is bristling at the piling on after Florida and other states filed lawsuits in May.

‘Costly and protracted’

“We are disappointed that after months of good faith negotiations working toward a meaningful resolution to help these states address the opioid crisis, this group of attorneys general has unilaterally decided to pursue a costly and protracted litigation process,” Robert Josephson, a Purdue spokesman, said in a statement.

Other companies named routinely in these suits include Johnson & Johnson, Teva Pharmaceuticals, Cephalon, Janssen Pharmaceuticals and Insys Therapeutics.

The Palm Beach Post published a series in April about Insys Therapeutics, which prosecutors say participated in a national criminal conspiracy to catapult sales for the fentanyl spray called Subsys by bribing doctors to prescribe it through a “sham” speakers program. Today, Insys says it is beyond its past and is a good corporate citizen, replacing 90 percent of its key staff and cooperating with investigations.

Former Florida Attorney General Bob Butterworth led the charge against the tobacco companies that in 1997 carved out a landmark settlement for $11.3 billion. The tobacco companies were still dealing with litigation last year, agreeing to a pay $100 million to settle lawsuits brought on behalf of individual smokers.

Calls or emails to tobacco companies R.J. Reynolds and Altria seeking comment were not returned. R.J. Reynolds, on its website, provides a statement “to underscore the company’s commitment” to the settlement with states attorney generals 20 years ago and to curb underage smoking.

‘Man-made Crisis’

Butterworth said it was Florida’s effort to recoup Medicaid costs driven by smoking-relating illnesses that opened the door for individual smokers and their families to sue in the state. He sees the current litigation against pharmaceutical companies as laying a similar foundation for families who watched their loved ones go from prescription painkillers to heroin to a body bag.

“Young people are being killed by this drug,” he said. “It is totally appropriate for the states to file these actions, and usually the attorney generals are the ones to really lead it.”

Butterworth saw the roots of the current opioid crisis possibly before any other public official, calling the black market sale of Oxycontin a “major public health threat” back in 2001. He investigated Pudue Pharma.

Dave Aronberg, the state attorney for Palm Beach County, said he worked in Butterworth’s AG office back then and helped put pressure on Purdue Pharma to pull a 160 mg opioid-based painkiller off the market.

“The companies responsible for this man-made crisis need to be held accountable in the courts,” Aronberg said. “The lawsuits will ultimately succeed and will mark a major turning point against opioid abuse. You will see billions of dollars go to states and local government to battle opioid addiction and companies will be forced to change their behavior.”

Delray Beach’s lawsuit, for instance, echoes one of the main arguments against the tobacco industry: that its product marketing was fiendishly deceptive.

Pharmaceutical companies borrowed from the tobacco’s industry model to “re-educate” the public where opioids were considered safe and effective for long-term use for the masses rather than just those who suffer post-surgical or end-stage cancer pain, according to the complaint.

“As people became more and more hooked on prescription painkillers, they moved to heroin, and increasingly to fentanyl, which is even more potent and cheaper,” Delray Beach’s lawsuit claims. “Drug manufacturers’ deceptive marketing and sale of opioids to treat chronic pain are one of the main drivers of this catastrophic epidemic.”

‘Class of Zombies’

Delray Beach had a front-row view of the opioid crisis as recovery centers and sober homes staged a hostile takeover of the city, Glickstein said.

“We ended up with a transient class of zombies walking around town. Because in the recovery industry the recidivism rate is 90 percent,” he said. “These people weren’t getting better. They were coming here and getting worse: homeless, penniless, suffering from addiction.”

Glickstein also gives Bondi little credit for filing the state’s lawsuit as her last term expires, calling it politically safe.

“It’s ridiculous that the state hasn’t been a leader on this,” he said. “I can’t tell you how many conversations I had with people up in Tallahassee. They viewed this as a parochial problem. They said, ‘I never heard of a sober home, that must be a Delray thing.’”

Bondi called her action against Big Pharma “the most comprehensive lawsuit in the country.” But the lawsuit left out one defendant named routinely in these suits: Insys Therapeutics.

The Arizona-based company has already faced lawsuits by several other attorneys general around the country who accuse it of bribing doctors to prescribe fentanyl to unsuspecting patients for migraines, routine back pain and other ailments not approved by the Food & Drug Administration.

Oregon, New Hampshire, Massachusetts and Illinois settled their suits with Insys for $9 million. Four other states have litigation pending against Insys.

Bondi’s office said it’s not letting Insys off the hook. “We have a separate, ongoing investigation of Insys Therapeutics,” said Whitney Ray, Bondi’s spokesman.

What about doctors?

Richard Hollawell, a lawyer who represents a New Jersey family of a woman who died from an Insys’ product, said Florida’s Board of Medicine needs to start focusing on doctors who took money to prescribe Insys’ powerful fentanyl spray.

“They aren’t suing Insys because Insys is a small company facing many suits,” he said. “They want definitive settlement money. It is all about a money grab, and not sending a message that we will put you out of business.”

Butterworth says the pharmaceutical companies will try to settle rather than fight in court. Purdue Pharma last year proposed a global settlement in an attempt to end state investigations. Hundreds of cases brought by states and cities have been consolidated in a federal court in Ohio.

Cigarette smoking was woven into the fabric of American culture, he said. GIs got them in their rations. John Wayne smoked. The industry buried studies that cigarettes weren’t addictive. It bitterly fought a class-action lawsuit brought by former smokers. It successfully for years put the onus on the smoker, saying they knew the risk.

In the current litigation, pharmaceutical companies will have to deal with an 18-year-old who overdosed after getting hooked on prescription painkillers following a high school sports injury.

“Put yourself in a position of the manufacturer,” Butterworth said. “If somebody sues in Palm Beach County, you think a jury is going to say what they did was OK?”

Aronberg is a bit more cautious. He says the defendants have room to maneuver.

“Tobacco had no beneficial use. Tobacco was dangerous per se. These drugs can help people,” he said. “That is an issue that may work in the favor of pharmaceutical companies. Tobacco just helped tobacco farmers and tobacco companies.”

These lawsuits also often don’t just include drug makers but also name distributors and retailers, adding layers of complexity to these cases.

Parallels to Big Tobacco

Arthur Caplan the head of medical ethics at New York University School of Medicine told the health website Healio he could see pharmaceutical companies argue in court that it was up to the physicians, not the manufacturers, how these drugs were prescribed.

He also noted the parallels between the current litigation and the lawsuits that generated the tobacco settlement agreement.

“The tobacco industry (also) denied knowledge that tobacco was addictive, covered up what they knew, and did not tell the truth to the public, to public health authorities, to doctors about what they knew about nicotine, about what they knew about the addictive nature of smoking cigarettes,” he said.

“The tobacco industry also made many claims that if you filtered cigarettes or adjusted the cigarette you could make a safer cigarette, which has analogies to, ‘If you prescribe differently you can prescribe people opioids without getting them addicted,’” he added.

The question is whether if more money extracted from the pharmaceutical industry will change its marketing behavior. Both Purdue Pharma and Cephalon paid $634.5 million and $425 million respectively in 2007 and 2008 but the pill mills still thrived in South Florida for years afterward.

The Feds these days, though, are playing hardball. They are prosecuting executives, managers and doctors of Insys Therapeutics who participated in the alleged scheme to bribe doctors to prescribe the company’s fentanyl spray.

Aronberg says criminal prosecution may be the biggest cudgel in getting the industry to put patients over profits.

“The one thing that will deter this type of conduct in the future is handcuffs on the executives who made the decisions,” he said. “Purdue Pharma executives were spared prison after the federal government won its case, but moving forward I think that none of these executives is too powerful to prosecute.”




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