Drugmakers Throw Purdue Under Bus In Opioid Trial Gamble
By Jeff Overley
Law360 (May 21, 2021, 9:35 PM EDT) — Major pharmaceutical companies embroiled in a multibillion-dollar opioid trial are pinning blame for rampant abuse of prescription narcotics on fellow drugmaker Purdue Pharma, gambling that they can impugn Purdue’s marketing of OxyContin without incriminating their own promotion of painkillers.
Big Pharma’s finger-pointing has played out during a momentous trial pitting California municipalities against drugmakers accused of deceiving doctors about addiction risks in much the same way as Purdue, which avoided the trial because of its bankruptcy.
“Let’s talk about who Endo is not. Endo was no Purdue — not even close,” Hueston Hennigan LLP partner John C. Hueston said in defense of Endo Pharmaceuticals, which has devoted much of its trial time to pummeling Purdue.
In a California opioid trial being conducted via videoconference, drugmakers have shifted blame to Purdue Pharma, at times literally highlighting the company’s name in research by the plaintiffs’ experts.
Although Purdue has long faced widespread condemnation, the scorn hasn’t typically taken the shape of a legal cudgel wielded by its own industry. But at the California bench trial, internecine drubbings have suddenly become commonplace.
“Unlike many other manufacturers, including Purdue Pharma, Allergan isn’t an opioids company,” Kirkland & Ellis LLP partner Donna Welch said when defending Allergan PLC against accusations involving the morphine product Kadian. “At the end of the trial, you will have seen no evidence that Kadian marketing ever copied the aggressive marketing of Purdue.”
It’s a classic version of the ’empty chair’ strategy: ‘We’re not to blame, they are!’
ELIZABETH CHAMBLEE BURCH
University of Georgia School of Law
The trial, which kicked off last month, is one of three so far in a nationwide onslaught of opioid litigation that local governments initiated in recent years. It was the first trial to start after Purdue sought bankruptcy protection in 2019, shielding the company from opioid trials but also leaving it exposed as a potential whipping boy for remaining defendants.
Endo, Allergan and the two other defendant entities — Johnson & Johnson and its Janssen
Pharmaceuticals division as well as Teva Pharmaceuticals and its Cephalon Inc. division — have all insisted individually that they bear little resemblance to Purdue. The companies have also joined forces to deliver unified lashings.
In a joint trial brief, the drugmakers protested that evidence “does not distinguish” among them and includes “marketing by non-defendant companies like Purdue, [which] has pleaded guilty to multiple criminal marketing offenses.”
The mudslinging against Purdue is part of a broader trial strategy to muddy the waters surrounding the opioid epidemic’s emergence. According to the drugmakers, other villains include “rogue doctors” who traded painkiller prescriptions for cash, “Mexican drug cartels” and “Chinese producers” that supplied illicit opioids, and “dark web” internet sales of various narcotics.
Elizabeth Chamblee Burch, a mass torts scholar at the University of Georgia School of Law, said the drugmakers are wise to cast aspersions on other parties — especially parties that aren’t at the trial to deny wrongdoing — because most people agree there’s an opioid epidemic and the judge might want answers.
“Rather than turning a blind eye to the problem, the defendants’ best strategy is find a scapegoat — be it pill mills, doctors, other manufacturers or some criminal element,” Burch told Law360. “It’s a classic version of the ’empty chair’ strategy: ‘We’re not to blame, they are!'”
Opioid litigation has targeted different pharmaceutical industries, including manufacturers and distributors. Experts have predicted that a trial focused only on distributors, such as the one that just began in West Virginia, might encourage shifting of blame to manufacturers.
At that trial, all three distributors — AmerisourceBergen Corp., Cardinal Health Inc. and McKesson Corp. — mentioned allegations against Purdue when arguing that their opioid shipments were lawful and driven by wider opioid prescribing.
Can they really differentiate themselves from what Purdue did?
CARL W. TOBIAS
University of Richmond School of Law
“I do agree with [plaintiffs counsel] that it began with OxyContin,” Williams & Connolly LLP partner Enu Mainigi, counsel for Cardinal, said during opening statements in West Virginia federal court. “That was the beginning of a fundamental shift in the standard of care.”
But in the California trial, drugmakers are shifting blame to a member of their own industry that has been accused of similar marketing misconduct. Carl W. Tobias, a product liability professor at the University of Richmond School of Law, said that the drugmakers are “trying to have it both ways” by vilifying Purdue and simultaneously depicting themselves as good corporate citizens.
“Can they really differentiate themselves from what Purdue did?” Tobias asked. “It could come back to haunt them. It may be a risky strategy.”
Simon Greenstone Panatier PC founding partner Jeffrey B. Simon, a top lawyer for plaintiffs in multidistrict opioid litigation in Texas state court, voiced a similar sentiment. He noted that Purdue and other drugmakers have been accused of “a highly collaborative effort” meant to “overstate the efficacy of opioid drugs and understate their risks.”
For drug companies to say, ‘It was just Purdue, to the exclusion of me,’ might be risky business.
JEFFREY B. SIMON
Simon Greenstone Panatier, P.C.
“For other drug companies to lay out and say, ‘It was just Purdue, to the exclusion of me,’ might be risky business,” Simon told Law360. “If there’s proof that they, too, were collaborative in those irredeemable actions, they’ve got a big problem.”
In a statement provided to Law360, Purdue noted that it has proposed a $10 billion settlement that includes medications for opioid overdoses and addiction.
“We strongly disagree with overly simplistic theories of how the opioid crisis began,” the company said. “Its origins are complex, and solutions will require collaboration from many stakeholders.”
The California communities and the drugmakers don’t dispute that blame belongs in multiple places. But they have very different views of whether Purdue was an outlier among its drugmaker peers.
“We are not before your honor saying that the manufacturers are the only ones who had any responsibility,” Motley Rice LLC member Fidelma Fitzpatrick, counsel for the communities, told Orange County Superior Court Judge Peter J. Wilson. “We are saying that without this quantity of pills that they manufactured, that they promoted, that they marketed, the opioid epidemic would not have been as catastrophic as it is.”
But the drugmakers are saying that’s a specious story of guilt by association with Purdue, and that they’ve actually rendered the epidemic less catastrophic by making painkillers harder to crush, snort, dissolve and inject than the original OxyContin, which was reformulated in 2010 to impede misuse.
O’Melveny & Myers LLP partner Michael Yoder told Judge Wilson that it “took years” for Janssen to develop tamper-resistant pills, and that it “delayed launching” the narcotic painkiller Nucynta ER as a result.
We strongly disagree with overly simplistic theories of how the opioid crisis began.
“Janssen was aware of the situation involving OxyContin, so it made a decision to try to do something better, and it did,” Yoder said. “This was in direct response to the reports of abusers crushing OxyContin pills to get high.”
Drugmakers have also suggested that Purdue paved the way for prolific prescribing by launching OxyContin in the 1990s with a label that encompassed moderate to severe pain when an opioid was needed for “more than a few days.”
Collie James of Morgan Lewis & Bockius LLP, counsel for Teva and Cephalon, stressed that “OxyContin’s indication was very broad,” and that Cephalon’s fentanyl painkillers carried “a very different and much-narrower indication than the one for OxyContin.”
No company at the trial has been more combative about drawing distinctions with Purdue than Endo. If each drugmaker has thrown Purdue under the bus, then Endo has also jumped behind the wheel and driven back and forth over the fallen OxyContin giant.
Hueston set the tough tone with an opening statement that alleged “years of misconduct by Purdue” and sought to cast Endo in a more favorable light.
“By 2006, the days of what Purdue was doing in the late ’90s was over. And to be clear, that conduct was reprehensible, and Endo never engaged in anything resembling it,” Hueston said.
Endo’s lawyers have kept up the criticism throughout the trial’s first five weeks, repeatedly pressing the municipalities’ expert witnesses to describe Purdue as uniquely culpable.
Most observers trace the unprecedented rise in opioid addiction to the aggressive marketing of OxyContin by Purdue, right?
“You would agree, sir, that most observers trace the unprecedented rise in opioid addiction to the … aggressive marketing of OxyContin by Purdue, right?” Hueston Hennigan co-founder Moez Kaba asked University at Buffalo associate professor David Herzberg, a medical historian.
Herzberg replied that most observers believe the rise “began with Purdue’s OxyContin,” but that he was “not aware of anyone who argues that it was just Purdue.”
Endo’s focus on Purdue has sometimes seemed to bear fruit. At one point, an Endo attorney displayed a report in which an expert for the plaintiffs had examined drugmaker documents that allegedly “minimized concerns about [the] addictive nature of opioids.” The attorney then observed that none of the documents came from Endo and used yellow highlights to emphasize that all the documents on one page came from Purdue.
“You understand Purdue is not a defendant in this case?” Endo attorney Marshall Camp, another Hueston Hennigan co-founder, asked the report’s author, former University of Georgia professor Matthew Perri.
“I guess no longer a defendant,” Perri replied.
But at other times, the challenge of making Purdue look dramatically different has been visible. One example occurred when Camp said that Endo trained its sales reps about Purdue’s inaccurate marketing, and then pressed Perri about an allegedly recurring theme of drugmaker marketing that minimized addiction concerns.
“That is certainly not a theme of the Endo training materials we looked at, right?” Camp asked.
“Not a theme of training materials,” Perri, an expert in pharmaceutical marketing, replied. “But if you look at marketing messages, you would find a different answer.”
Camp quickly moved to strike the second part of the answer, and after a short pause, Judge Wilson agreed to disregard it.
The municipalities are represented by the offices of the Santa Clara County Counsel, the Orange County District Attorney, the Los Angeles County Counsel and the Oakland City Attorney, as well as by Motley Rice LLC, Skikos Crawford Skikos & Joseph LLP and Robinson Calcagnie Inc.
Allergan and its affiliates are represented by Kirkland & Ellis LLP. Endo and its affiliates are represented by Hueston Hennigan LLP. Johnson & Johnson and its affiliates are represented by O’Melveny & Myers LLP. Teva and its affiliates are represented by Morgan Lewis & Bockius LLP.
The case is People of the State of California v. Purdue Pharma LP et al., case number 2014-00725287, in the Superior Court of the State of California, County of Orange.
–Editing by Jill Coffey and Breda Lund.