Opioid Lawsuits: Transparency, Possible Bankruptcy and Incendiary Language

With a major lawsuit in Oklahoma targeting Johnson & Johnson and Purdue Pharma’s involvement in the opioid epidemic starting in May, many of the legal documents are being released, with strategies and sometimes incendiary rhetoric coming to light.

Oklahoma is the first state bringing claims against opioid makers, including J&J’s Janssen unit and Purdue Pharma. Per Bloomberg, “The state is seeking more than $25 billion in damages and penalties over what it says was the illegal marketing of the painkillers.”

This is the first in wave of lawsuits brought by 36 states and more than 1,600 U.S. cities.

As legal documents are released, details and often inflammatory language is being used by lawmakers. For example, J&J’s subsidiary based in Tasmania, Australia, grew opium poppies that were part of its Nucynta drug and sold to other pharma companies for their opioid-based products, according to the Oklahoma court filings.

Attorneys with the Oklahoma Attorney General Mike Hunter in a February state court document claimed that J&J’s marketing tactics targeting children and the elderly, and its supply chain, made it a “kingpin behind the public-health emergency, profiting at every stage.”

That seems like rather heated language for a court document. J&J stated on March 11 that U.S. regulatory authorities oversaw its opium unit regulations, which was sold to private equity firm SK Capital Partners in 2016. “Importantly, as a supplier, we did not have any role in the manufacturing, development, sales and marketing of other manufacturers’ finished products,” stated Andrew Wheatley, a J&J spokesperson, told Bloomberg.

And last week, J&J, Purdue and Teva Pharmaceutical were unable to convince a judge to delay the Oklahoma trial so they could finish pretrial information exchanges with the state. Attorney General Hunter is now asking a judge to unseal J&J information turned over for the trial.

The Oklahoma documents focus on whether J&J marketed its opioid and fentanyl-based drugs inappropriately to vulnerable populations.

On the part of Purdue Pharma, which has tended to be more closely connected to inappropriate marketing and sales of opioids, partially because of its manufacture of OxyContin, the question of whether it might declare bankruptcy to avoid the lawsuits has risen as a possible strategy.

The company’s president and chief executive officer, Craig Landau, told The Washington Post, “It is an option. We are considering it, but we’ve really made no decisions on what course of actions to pursue. A lot depends on what unfolds in the weeks and months ahead.”

Like J&J, more and more documents are being released, and in the case of Purdue, seems to show that they were aware their prescription opioids were much more addictive and dangerous than their marketing policies to physicians and patients indicated. The company’s sales directives also show they urged sales reps to get more opioids into vulnerable patients, including seniors and military veterans.

Included in that was a never-implemented plan called Project Tango, which noted the increased risk of the opioid epidemic, but was designed to increase Purdue profits by selling its addiction treatment services to people addicted to their own OxyContin.

One of the other prominent lawsuits is by the state of Massachusetts. Massachusetts Attorney General Maura Healey told NPR in February, “What Purdue’s own documents show is the extent of deception and deceit. What’s important to me is that the facts come to light and we get justice and accountability.”

For their part, Purdue Pharma seems to argue that these documents, such as Project Tango, are internal proprietary information that shouldn’t be released. And as NPR and ProPublica note, in previous opioid settlements, drug companies paid fines but demanded gag orders. ProPublica’s David Armstrong said, “The way it usually works is the language in the settlement requires either that the records be destroyed very quickly after the settlement or that they physically actually return the records to the drug company.”

That may not be the case in these lawsuits, where the narrative by many attorneys and politicians involved has become increasingly vitriolic. At a February Senate hearing, Sen. Maggie Hassan (D-NH) stated, “Companies like Janssen and Purdue Pharma fueled this epidemic, employing deceptive and truly unconscionable marketing tactics despite the known risk, so you could sell more drugs to maximize your profits.”

Jennifer Taubert, who heads the Janssen Pharmaceuticals unit, responded at the hearing, saying, “Everything that we have done with our products when we’ve promoted opioid products, which we stopped marketing a long time ago, was appropriate and responsible.”

Although J&J and Purdue are the primary targets—generally portrayed as villains in the legal documents and reportage—they are not the only companies involved. AmerisourceBergen has come under fire, as has McKesson and Cardinal Health. McKesson has already faced more than $160 million in federal fines, and Cardinal Health has been fined five times, totaling almost $100 million, since 2008.

Although the evidence to-date does suggest that the pharmaceutical companies understated the dangers of opioids and targeted so-called vulnerable populations, what often goes unspoken in these trials is the patients’ personal responsibility and the fact that much of the opioid epidemic is fueled not by prescription opioids, but by illegal fentanyl-heroin mixes sold on the street and largely imported into the country from Asia.

According to the National Institute on Drug Abuse, 21 to 29 percent of patients prescribed opioids for chronic pain misuse them. About 80 percent of people who use heroin first misused prescription opioids. But heroin use has more than doubled among people aged 18 to 25 years in the past decade. According to the Centers for Disease Control and Prevention (CDC), more than half of all overdose deaths in the U.S. are from heroin and fentanyl.

But it has also been noted that Oklahoma, compared to most states, had far more opioid overdose deaths from prescription painkillers rather than heroin or fentanyl.