Opi­oid fight turns bit­ter

The Oklahoman (Sunday) - - NEWS - BY RANDY EL­LIS Staff Writer rel­[email protected]­la­homan.com

NOR­MAN — Ok­la­homa’s law­suit against opi­oid man­u­fac­tur­ers has be­come in­creas­ingly bit­ter, with at­tor­neys for the state ac­cus­ing John­son & John­son of hid­ing crit­i­cal doc­u­ments and en­gag­ing in de­lay tac­tics.

At­tor­neys for the drug com­pa­nies have fired back, ac­cus­ing the state’s at­tor­neys of par­tic­i­pat­ing in a “me­dia cam­paign” that tar­gets Ok­la­homa cit­i­zens with “state-spon­sored pro­pa­ganda” against the Pur­due group of phar­ma­ceu­ti­cal com­pa­nies.

Both sides re­peat­edly have asked the trial judge, Thad Balk­man, and dis­cov­ery mas­ter Bill Hether­ing­ton to step in and set­tle ev­i­dence gath­er­ing dis­putes as the case steams to­ward a May 28 jury trial date in Cleve­land County Dis­trict Court.

The law­suit, filed by Ok­la­homa At­tor­ney Gen­eral Mike Hunter, ac­cuses more than a dozen drug com­pa­nies of mak­ing bil­lions of dol­lars off the sale of opi­oids through fraud­u­lent mar­ket­ing cam­paigns that mis­rep­re­sented the ad­dic­tive prop­er­ties of the painkilling drugs.

Wag­ing the le­gal bat­tle are a bevy of high-dol­lar metro and out-of­s­tate lawyers who have filed and ar­gued over thou­sands of pages of mo­tions, replies, sub­poe­nas and other doc­u­ments.

To spear­head the state’s ef­forts, Hunter brought in a firm whose prin­ci­pals are Reg­gie Whit­ten, whose son was a pre­scrip­tion drug and al­co­hol ad­dict who died in a ve­hi­cle ac­ci­dent, and Michael Bur­rage, a for­mer fed­eral judge.

The state won a ma­jor vic­tory in Au­gust when a fed­eral judge al­lowed the case to re­main in state

court. The drug­mak­ers sought to move the dis­pute to a U.S. Dis­trict Court in Ohio, which is hear­ing a multi-ju­ris­dic­tional opi­oid law­suit that in­cludes nu­mer­ous states and other gov­ern­ments as plain­tiffs. Ok­la­homa City re­cently filed its own law­suit against opi­oid man­u­fac­tur­ers, dis­trib­u­tors and some doc­tors. That law­suit is pend­ing in Ok­la­homa County Dis­trict Court.

Judge Balk­man, a for­mer state law­maker, has yet to rule on two con­tentious mo­tions filed re­cently in the Cleve­land County case.

In one mo­tion, at­tor­neys for the state ac­cused John­son & John­son of hid­ing two crit­i­cal doc­u­ments and en­gag­ing in de­lay tac­tics.

Hid­den doc­u­ments

“J&J hid this doc­u­ment and hoped that the state would not find it,” Ok­la­homa’s lawyers said of one par­tic­u­lar cor­po­rate doc­u­ment.

The doc­u­ment was a 2018 John­son & John­son re­quest for grant pro­pos­als that in­cluded the state­ment that “as many as one in four pa­tients re­ceiv­ing long-term opi­oid ther­apy in a pri­mary care set­ting strug­gles with opi­oid ad­dic­tion.”

The other doc­u­ment was con­tained in ma­te­ri­als dis­trib­uted at a 2006 Capi­tol Hill brief­ing by the Pain Care Fo­rum. Ok­la­homa’s at­tor­neys said John­son & John­son is a mem­ber of the Pain Care Fo­rum, which they de­scribed as a coali­tion of ad­vo­cacy groups, opi­oid man­u­fac­tur­ers, key opin­ion lead­ers and front groups that col­lab­o­rate to in­flu­ence fed­eral and state leg­is­la­tors.

The brief­ing ma­te­ri­als in­cluded the state­ment: “Ap­pro­pri­ate use of opi­oid med­i­ca­tions like oxy­codone is safe and ef­fec­tive and un­likely to cause ad­dic­tion in peo­ple who are un­der the care of a doc­tor and who have no his­tory of sub­stance abuse,” the state’s at­tor­neys said.

“This state­ment was and re­mains false,” the at­tor­neys said. “It is a lie. There is no bet­ter word for it. A lie is a lie is a lie. And this lie killed. And still kills.”

Ok­la­homa’s at­tor­neys are ask­ing the trial judge to im­pose se­vere sanc­tions, in­clud­ing ban­ning 12 of John­son & John­son’s out-of-state lawyers from par­tic­i­pat­ing in the case, pro­hibit­ing the drug com­pany from uti­liz­ing sev­eral key le­gal de­fenses, and fin­ing the com­pany $5,000 a day un­til it presents a wit­ness pre­pared to tes­tify on des­ig­nated top­ics.

‘State-spon­sored pro­pa­ganda’

At­tor­neys for the drug com­pa­nies have fought back with their own court fil­ings and are ac­cus­ing the state’s at­tor­neys of par­tic­i­pat­ing in a pro­pa­ganda cam­paign.

Much of their crit­i­cism fo­cused on a sev­en­part “doc­u­men­tary” on opi­oid ad­dic­tion called “Killing Pain” that was re­leased on­line in Au­gust.

That se­ries was fi­nan­cially backed by Fight­ing Ad­dic­tion Through Ed­u­ca­tion (FATE), a non­profit or­ga­ni­za­tion founded by Whit­ten, one of the state’s lead at­tor­neys the opi­oid law­suit.

Whit­ten also is listed as an ex­ec­u­tive pro­ducer for the se­ries, which blames a de­cep­tive mar­ket­ing cam­paign by phar­ma­ceu­ti­cal com­pa­nies for caus­ing the opi­oid epi­demic.

“‘Killing Pain’ is noth­ing short of a state­spon­sored com­pre­hen­sive me­dia cam­paign pur­pose­fully di­rected at Ok­la­homa cit­i­zens and pur­pose­fully or­ches­trated to ex­tend the state’s po­si­tion in this case via so­cial,” Pur­due’s at­tor­neys con­tend.

Whit­ten says he’s of­fended by the al­le­ga­tion.

“I’m proud of what I’m do­ing,” Whit­ten told The Ok­la­homan. “I think Pur­due should be ashamed of them­selves for in­ti­mat­ing in any way, shape or form that I’ve done any­thing wrong. It’s to­tal bull ... I have a First Amend­ment free speech right to do my non­profit work ... I plan on con­tin­u­ing to do it. There’s no con­flict with rep­re­sent­ing the state on this law­suit.”

Lawyers for Pur­due have asked the judge to en­force sub­poe­nas is­sued to the non­profit Whit­ten founded as well as the Ok­la­homa City film pro­duc­tion com­pany Lamp­stand Me­dia, which pro­duced the doc­u­men­tary “Killing Pain.”

Among other things, the drug com­pany lawyers are seek­ing de­tailed in­for­ma­tion about who funded the doc­u­men­tary as well as com­mu­ni­ca­tions be­tween peo­ple in­volved in the film’s pro­duc­tion and em­ploy­ees and agents of the State of Ok­la­homa.

Whit­ten openly ac­knowl­edges that FATE, the non­profit he founded, fi­nanced the pro­duc­tion of “Killing Pain,” but said it wasn’t done to bol­ster the state’s law­suit against drug com­pa­nies. He con­tends the sub­poe­nas are “ha­rass­ment.”

“I came up with the idea of mak­ing this film and we started work­ing on it be­fore I ever got hired on the opi­oid case,” Whit­ten said. “I never even knew there was go­ing to be an opi­oid case.”

Whit­ten said his pas­sion for fight­ing opi­oid ad­dic­tion was ig­nited by the 2002 death of his 25-year-old son, Bran­don, a pre­scrip­tion drug and al­co­hol ad­dict who died in a ve­hi­cle ac­ci­dent.

FATE and Lamp­stand are fight­ing the sub­poe­nas, ar­gu­ing the in­for­ma­tion re­quested is “overly broad and un­duly bur­den­some.”

FATE ar­gues its sub­poena also in­trudes on “free­dom of speech and free­dom of as­so­ci­a­tion priv­i­leges granted by the First Amend­ment,” while Lamp­stand ar­gues its sub­poena seeks in­for­ma­tion “pro­tected by the jour­nal­ist’s priv­i­lege.”

Pur­due at­tor­neys dis­pute those ar­gu­ments.

“FATE and Lamp­stand, with the help of the state, (At­tor­ney) Gen­eral Hunter, and the state’s pri­vate coun­sel, have no prob­lem at­tack­ing the mar­ket­ing and me­dia cam­paigns fos­tered by Pur­due in re­la­tion to opi­oid abuse, but cry foul when Pur­due seeks to dis­cover rel­e­vant in­for­ma­tion re­lated to their state-en­dorsed me­dia cam­paign which tar­gets the cit­i­zens of Ok­la­homa with state­spon­sored pro­pa­ganda against Pur­due,” the at­tor­neys said.

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