Amid po­ten­tial

Al­leged vic­tims fear they will be left out of na­tional govern­ment set­tle­ments

The Washington Post - - FRONT PAGE - BY CHRISTO­PHER ROW­LAND christo­pher.row­[email protected]­

set­tle­ments with states, pri­vate plain­tiffs worry the stigma of opi­oid ad­dic­tion will keep them from get­ting jus­tice.

Soon af­ter get­ting an Oxycontin pre­scrip­tion for back pain and arthri­tis in 1999, dis­abled coal miner James P. Craig started pop­ping three of the nar­cotic pills daily, in­stead of the pre­scribed two, he said in a de­po­si­tion as part of a law­suit against the drug’s man­u­fac­turer, Pur­due Pharma. Within months, he said in the de­po­si­tion, he was swal­low­ing and crush­ing and snort­ing up to seven a day to sat­isfy his crav­ing.

When doc­tors stopped pre­scrib­ing Oxycontin, he said, he started buy­ing the nar­cotic pain med­i­ca­tion il­le­gally.

“I didn’t re­al­ize what they’d do to you un­til it was too late,” Craig said in an in­ter­view from his home in ru­ral Path­fork, Ky., an Ap­palachian Moun­tain town near the Cum­ber­land Gap. “Within a cou­ple of months, you don’t want to ad­mit it, but one [pill] won’t do, and you’re run­ning around the streets try­ing to buy one.”

In a law­suit, Craig claimed Pur­due Pharma was re­spon­si­ble for his ad­dic­tion, sub­se­quent pain and suf­fer­ing, and fi­nan­cial losses. The claim said Pur­due Pharma failed to warn him and other plain­tiffs about the ad­dic­tive na­ture of the drug. But a U.S. District Court judge dis­agreed in 2003. In dis­miss­ing a case brought by Craig, now 72, and other plain­tiffs, in­clud­ing fam­i­lies of two who died of over­doses, the judge cited their il­le­gal be­hav­ior and said the court would “not ac­cept the plain­tiffs’ ‘vic­tim­iza­tion’ men­tal­ity.” Fast-for­ward 16 years. More than 400,000 peo­ple have died in the na­tional opi­oid epi­demic, which was spawned by pre­scrip­tion opi­oids and ex­panded to the il­le­gal use of heroin and fen­tanyl.

Pur­due Pharma has filed for bank­ruptcy pro­tec­tion from more than 2,700 law­suits brought by state and lo­cal gov­ern­ments, in­surance com­pa­nies and hos­pi­tals, claim­ing it de­cep­tively mar­keted its pre­scrip­tion opi­oids. The com­pany is in set­tle­ment talks, as are generic drug man­u­fac­tur­ers and large distrib­u­tors and drug­store oper­a­tors.

But even as govern­ment law­suits have spurred the po­ten­tial for sweep­ing na­tional set­tle­ments, the con­tin­u­ing stigma of ad­dic­tion and crim­i­nal ac­tiv­ity re­mains a bar­rier to dam­age awards for the in­di­vid­ual peo­ple who suf­fered the most, ac­cord­ing to al­leged vic­tims, plain­tiff lawyers and le­gal spe­cial­ists. The one ex­cep­tion might be ba­bies whose moth­ers were ad­dicted dur­ing preg­nancy.

Pre­scrip­tion opi­oid abusers of­ten are per­ceived to share the blame for the se­ri­ous harm they ex­pe­ri­enced through ad­dic­tion to pre­scrip­tion pills, re­cov­er­ing users con­tend. Un­like those in­jured by as­bestos, med­i­cal im­plants or faulty au­to­mo­bile bags, courts have been re­luc­tant to ac­cept their claim that their ad­dic­tion was the re­sult of a dan­ger­ous, im­prop­erly mar­keted prod­uct.

Be­cause it was the first com­pany to ag­gres­sively mar­ket a new form of po­tent opi­oid prod­uct with its in­tro­duc­tion of Oxycontin in 1996, ac­cord­ing to le­gal ex­perts, Pur­due Pharma was the big­gest tar­get of per­sonal in­jury law­suits as the opi­oid epi­demic took hold in the early 2000s.

In its de­fense in that first wave of lit­i­ga­tion, the com­pany as­serted in courts across the coun­try that it should not be held li­able for abusers’ mis­use of Oxycontin and other ac­tions, which may have been il­le­gal.

The cause of any in­jury “was the plain­tiff ’s choice to use, mis­use, or abuse Oxycontin in a man­ner other than that rec­om­mended” and “the plain­tiff ’s own con­duct,” the com­pany said in a 2004 Illi­nois case in fed­eral court.

The Wash­ing­ton Post re­viewed court fil­ings by Pur­due Pharma in U.S. District Court in Ken­tucky, West Vir­ginia and Texas and found vir­tu­ally iden­ti­cal ar­gu­ments.

Pur­due Pharma’s broad le­gal strat­egy echoed a po­si­tion stated in an email by Richard Sack­ler, the for­mer pres­i­dent and chair­man of the fam­ily-owned com­pany, in 2001.

“We have to ham­mer on the abusers in ev­ery way pos­si­ble. They are the cul­prits and the prob­lem. They are reck­less crim­i­nals,” Sack­ler wrote in the email, which was cited in a Jan­uary law­suit against Pur­due Pharma and the fam­ily by Mas­sachusetts At­tor­ney Gen­eral Maura Healey.

A rep­re­sen­ta­tive for Richard Sack­ler ear­lier this year, in a writ­ten re­sponse to the re­lease of the email, said, “Pur­due nei­ther de­vel­oped nor im­ple­mented any such strat­egy. . . . Like many peo­ple, Dr. Sack­ler has since learned a lot more about ad­dic­tion, and has apol­o­gized for his in­sen­si­tive lan­guage of decades past.”

Pur­due and other com­pa­nies be­ing sued — in­clud­ing the large distrib­u­tors Mckesson, Amerisourc­e­ber­gen and Car­di­nal Health, as well as generic man­u­fac­tur­ers Teva and Mallinck­rodt — have con­tin­ued to rely on a de­fense that pre­scrip­tion opi­oids were il­lic­itly mis­used. The de­fenses say the com­pa­nies should not be held li­able for such be­hav­ior and that the gov­ern­ments’ cases should be dis­missed.

“Pur­due is deeply con­cerned about the im­pact of the opi­oid cri­sis on in­di­vid­ual vic­tims and their fam­i­lies,” the com­pany said in an emailed state­ment. But it did not di­rectly sup­port com­pen­sa­tion awards for vic­tims in its state­ment.

“All claimants, in­clud­ing in­di­vid­ual vic­tims, will have the op­por­tu­nity to sub­mit their claims through the bank­ruptcy process,” the com­pany said.

Ab­bott Lab­o­ra­to­ries adopted the same le­gal strat­egy as Pur­due Pharma, ac­cord­ing to a re­view of its court fil­ings. The com­pany was also tar­geted in early law­suits be­cause it co-mar­keted OxyContin un­der an agree­ment with Pur­due Pharma in the painkiller’s first years on the mar­ket. Ab­bott de­clined to com­ment.

Now that gov­ern­ments have taken over the role of lead plain­tiffs in the wave of law­suits, opi­oid abusers and fam­i­lies of over­dose vic­tims have had little to no role in the talks with Pur­due Pharma and other opi­oid man­u­fac­tur­ers and distrib­u­tors. It re­mains un­clear when or how — or even whether — in­di­vid­u­als and their fam­i­lies will be com­pen­sated from the set­tle­ment pro­ceeds.

“Peo­ple have this no­tion that we did this to our­selves — that we made these bad choices, that it’s a moral fail­ing not a dis­ease,” said re­cov­er­ing opi­oid ad­dict Gar­rett Hade, who said in bank­ruptcy court doc­u­ments that he was pre­scribed Oxycontin at 18 to treat in­juries he suf­fered while skate­board­ing. “Those are the types of stig­mas that are at­tached to this. That holds sway.”

The largest Pur­due Pharma set­tle­ment with a state thus far, in Ok­la­homa, steered nearly $200 mil­lion to the Univer­sity of Ok­la­homa to es­tab­lish a re­search and ad­dic­tion-treat­ment pro­gram. An­other $12 mil­lion went to lo­cal gov­ern­ments and $60 mil­lion for le­gal ex­penses.

None of the set­tle­ment money was ear­marked di­rectly for vic­tim com­pen­sa­tion. In ad­vance of the $85 mil­lion set­tle­ment with Teva, a generic opi­oid man­u­fac­turer, the Ok­la­homa leg­is­la­ture cre­ated a spe­cial fund for the money to ad­dress the opi­oid epi­demic.

Vic­tim-com­pen­sa­tion funds also have not yet been floated as part of the na­tional-level set­tle­ments be­ing ne­go­ti­ated by gov­ern­ments and man­u­fac­tur­ers. The most tan­gi­ble ben­e­fit for vic­tims so far has been pro­pos­als for free anti-ad­dic­tion and over­dose-res­cue drugs to in­di­vid­ual com­mu­ni­ties.

“There is no jus­tice in what is hap­pen­ing,” said Hade, who has signed up as a plain­tiff cred­i­tor in Pur­due Pharma’s bank­ruptcy pro­ceed­ing. “I have no con­fi­dence, even if they set­tle with the states and the mu­nic­i­pal­i­ties, that the money will go to the right places.”

Hade and other al­leged vic­tims will be mount­ing a fight dur­ing Pur­due’s bank­ruptcy to win direct fi­nan­cial com­pen­sa­tion. Lawyers are sign­ing up to rep­re­sent vic­tims in the bank­ruptcy who will at­tempt to show they were in­jured by Oxycontin.

“The vic­tims them­selves didn’t re­al­ize they were vic­tim­ized. They thought of them­selves as drug ad­dicts, they thought of their par­ents or their kids as drug ad­dicts,” said Ed­ward Neiger, a lawyer with the firm ASK rep­re­sent­ing Hade and other in­di­vid­u­als with fi­nan­cial claims based on Oxycontin in­juries.

“They did not re­al­ize,” he said, “that they were ad­dicted to opi­oids be­cause there were peo­ple in a board­room con­spir­ing to mar­ket these drugs to them and to lie about the po­ten­tial harm these drugs would cause.”

In a court fil­ing, Neiger has as­serted a $2.5 mil­lion claim each for Hade and five oth­ers al­leg­ing per­sonal in­juries from Oxycontin. For two peo­ple who lost chil­dren to over­doses, he has pre­sented a claim for $5 mil­lion each al­leg­ing wrong­ful death.

Pur­due Pharma has not re­sponded to those cred­i­tor claims. The com­pany has de­nied that it caused harm to vic­tims and said it mar­keted its drugs re­spon­si­bly and ac­cord­ing to Food and Drug Ad­min­is­tra­tion guide­lines. It did not ad­mit wrong­do­ing as part of the Ok­la­homa set­tle­ment and would not make any such ad­mis­sion in the pro­posed bank­ruptcy set­tle­ment with other states and lo­cal gov­ern­ments.

In the pro­posed bank­ruptcy set­tle­ment sup­ported by nearly half of the states, the Sack­ler fam­ily, which owns the com­pany, has agreed to pay at least $3 bil­lion over seven years, mostly from the sale of over­seas phar­ma­ceu­ti­cal af­fil­i­ates. Pur­due Pharma’s as­sets also would go into the pot of cash, in­clud­ing more than $1 bil­lion in cash on hand when it filed for bank­ruptcy in Septem­ber.

Twenty-five states and the District of Columbia op­pose the bank­ruptcy set­tle­ment. They con­tend the Sack­ler fam­ily should con­trib­ute more.

But sup­port­ers of the deal say the set­tle­ment is the quick­est way to get re­lief to states and com­mu­ni­ties — as well as vic­tims. An­other cat­e­gory of vic­tim, ba­bies born to opi­oid-ad­dicted moth­ers and now suf­fer­ing from neona­tal ab­sti­nence syn­drome, is also be­ing rep­re­sented in the bank­ruptcy case.

“By cre­at­ing the bil­lions of dol­lars for re­cov­ery, you cre­ate the best op­por­tu­nity for ev­ery­body to par­tic­i­pate,” said a lawyer in­volved in the bank­ruptcy, who spoke on the con­di­tion of anonymity to dis­cuss mat­ters be­ing ne­go­ti­ated. “We’re go­ing to have to come up with a trust struc­ture that makes sense, that’s go­ing to pro­vide for the par­tic­i­pa­tion of in­di­vid­ual claims.”

A pro­posal to ac­cel­er­ate $200 mil­lion of the set­tle­ment for an “emer­gency fund” to steer money to lo­cal com­mu­nity or­ga­ni­za­tions that treat ad­dic­tion and pro­vide ser­vices to re­cov­er­ing ad­dicts and fam­i­lies has been en­dorsed by some par­ties to the bank­ruptcy and Pur­due Pharma. De­tails have yet to emerge, and it re­mains un­clear how many cred­i­tors will sup­port it.

“Pur­due fully sup­ports es­tab­lish­ing an emer­gency fund that would put money to work ad­dress­ing the opi­oid cri­sis be­fore a fi­nal plan is con­firmed,” the com­pany said in its state­ment.

Out­side the Pur­due Pharma bank­ruptcy, the gov­ern­ments have been at­tempt­ing to reach a set­tle­ment deal with other opi­oid-in­dus­try de­fen­dants, in­clud­ing man­u­fac­tur­ers Johnson & Johnson and Teva, and distrib­u­tors Mckesson, Car­di­nal Health and Amerisourc­e­ber­gen. The most re­cent ef­fort to reach a set­tle­ment, which fell short for lack of sup­port, would have been worth an es­ti­mated $48 bil­lion, $22 bil­lion in cash and $26 bil­lion in treat­ment drugs. The ne­go­ti­a­tions were pri­vate, but there were no public in­di­ca­tions that direct com­pen­sa­tion for vic­tims was part of the pro­posal.

Even that vast sum would not match the costs to com­mu­ni­ties and the health-care system. A re­cent es­ti­mate said U.S. costs of the epi­demic have reached more than $150 bil­lion a year.

The Ken­tucky law­suit brought by Craig and oth­ers was one of hundreds of prod­uct li­a­bil­ity cases against Pur­due Pharma that were thrown out of court or with­drawn dur­ing the first 10 years Oxycontin was on the mar­ket. Un­til it set­tled more than 1,000 in­di­vid­ual plain­tiff cases in 2007 and pleaded guilty to fed­eral charges that it de­cep­tively mar­keted Oxycontin, Pur­due Pharma touted its early record of court vic­to­ries.

“The courts just didn’t seem sym­pa­thetic at that time, be­tween 2000 and 2012,” said Richard C. Aus­ness, a pro­fes­sor of law at the Univer­sity of Ken­tucky. “It was a little rem­i­nis­cent of the to­bacco sit­u­a­tion. Courts and ju­ries, when they went to trial, said you have only your­self to blame.”

But in the to­bacco cases, he added, public sen­ti­ment changed in fa­vor of lung-can­cer pa­tients once in­for­ma­tion emerged about how to­bacco com­pa­nies con­cealed the dan­gers of smok­ing. In­for­ma­tion that has emerged in re­cent years about the mar­ket­ing prac­tices of Pur­due Pharma and other man­u­fac­tur­ers may have a sim­i­lar ef­fect, Aus­ness said.

Still, the big money for lawyers su­ing com­pa­nies will con­tinue to be found rep­re­sent­ing states, he said.

“The in­di­vid­ual plain­tiffs sort of feel left out, be­cause it’s a sum-zero game. There’s only so much money out there, and if the state and lo­cal gov­ern­ments get it all through a set­tle­ment,” he said, “there’s not go­ing to be much left for the other plain­tiffs.”

“There is no jus­tice in what is hap­pen­ing. I have no con­fi­dence, even if they set­tle with the states and the mu­nic­i­pal­i­ties, that the money will go to the right places.”

Gar­rett Hade, a re­cov­er­ing opi­oid ad­dict who has signed up as a plain­tiff cred­i­tor in Pur­due Pharma’s bank­ruptcy pro­ceed­ing


Lynn Wen­cus of Wren­tham, Mass., holds a sign with a pic­ture of her son Jeff and wears a sign of oth­ers’ loved ones lost to opi­oids dur­ing a protest in 2018 at Pur­due Pharma head­quar­ters. In the past, Pur­due has ar­gued that pre­scrip­tion opi­oids were il­lic­itly mis­used.

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