Drug makers are not corporate angels, but a new wave of lawsuits faces long odds.
The New York Times estimates that drug overdoses rose 19 percent in 2016, a year after they claimed more than 52,000 American lives — and about two-thirds of such deaths involve opioids.
There’s little dispute that the problem can be traced to a dramatic surge in opioid prescriptions that began in the 1990s, when doctors began making a sincere effort to better control patients’ pain. As the pills flowed more freely, some patients became addicted — and the drugs started to find their way to the black market.
To what extent is the opioid crisis the fault of drug companies such as Purdue, which created OxyContin? Several recent lawsuits by state and local governments — including the state of Ohio and the city of Everett, Wash. — are aiming to test that question in court. These entities claim that drug makers’ aggressive marketing and failure to shut down illegal trafficking contributed mightily to the epidemic. They’d like to recoup the money that public health-insurance plans spent on unnecessary opioids, as well as the public costs of opioid addiction.
By most accounts, these lawsuits are a long shot — they are a good deal less compelling than successful previous suits in a similar vein, such as the action against tobacco companies in the 1990s or the 2007 action against Purdue itself. But they invite us to ask who is responsible for America’s addiction to opioids, and what the role of civil lawsuits, as opposed to criminal prosecutions and regulatory sanctions, should be in bringing those people to justice.
Easily the most disturbing allegation against Purdue, uncovered by the Los Angeles Times last year and now the backbone of the Everett lawsuit, is that the company discovered the Lake Medical clinic in Los Angeles was working with a corrupt pharmacy to supply opioid addicts, and yet it did little to notify authorities or choke off the supply of pills.
Purdue’s tracking system showed that one doctor was writing an incredibly high number of OxyContin prescriptions. A district manager for the company visited the clinic and found the hallways filled with trash and packed with suspicious-looking men; she and a colleague left without speaking to the doctor in question for fear of their safety. The law required Purdue to report suspicious activity, and yet the LA Times quotes a former DEA official who was involved with the case who says he hadn’t been aware of the scope of the evidence Purdue had gathered. Many of the 1.1 million pills illicitly purchased at Lake Medical before it was shut down in 2010 made their way to Everett through a trafficker named Jevon Lawson.
There are several layers of complication, however, between this allegation and the conclusion that Everett should win its lawsuit — thorny legal questions of the kind that crop up whenever governments file civil suits seeking damages against companies rather than pursuing justice through more conventional means. For one thing, Purdue notes that law enforcement had its eyes on Jevon Lawson as early as 2007 and was notified by a wholesaler of suspicious activity at Lake Medical in 2009, just one month after the district manager raised concerns with her superiors. This suggests Purdue’s failure to report Lake Medical to the authorities, inexcusable as it may have been, didn’t allow the traffickers to escape notice and thus can’t be blamed for the pills’ ending up in Everett.
To what extent is the opioid crisis the fault of drug companies such as Purdue, which created OxyContin?
Even if we assume Purdue could have shut down Lake Medical sooner, there’s also the question of exactly how much of Everett’s opioid problem can be blamed on sales that should have been prevented, given that Purdue says it currently supplies just 2 percent of opioids nationwide. (Everett is apparently still doing the math itself; the initial filing of the lawsuit does not name the amount the city is seeking.) And then there’s the question of whether Purdue should pay civil damages for failing to stop the criminal activity of others. In one court filing, Everett notes a previous case — a lawsuit against a gun manufacturer that Congress ultimately intervened to stop — that was allowed to proceed on the grounds that criminal activity can be a “reasonably foreseeable” consequence of a company’s negligent behavior.
Ohio’s 107-page lawsuit against several drug makers faces even longer odds. Much of it reads as a basic description of how drug companies operate, injected with an accusatory tone: Can you believe these people promoted their products by emphasizing the benefits and deemphasizing the risks, hired doctors to serve as spokespeople, and funded friendly activist organizations? Bizarrely, it also characterizes as “false” or “misleading” marketing statements that are obviously accurate, such as the claim that patients prescribed opioids “usually” don’t become addicted. (Why, one wonders, would any doctor or patient find that reassuring?)
What’s more, in contrast with, say, cigarettes, opioids are harmful primarily when they are not used as directed, are cleared for sale by the federal government, and come with government-approved warning labels explaining the risks — all factors that will make judges skeptical of suits such as Ohio’s. The drug business is unseemly in countless ways, and opioid makers are not corporate angels, but Ohio will have a hard time convincing a court that Big Pharma should fork over a bunch of cash to a state government on account of the conduct described in the lawsuit.
It’s instructive to compare the current efforts to the ones that succeeded back in 2007. The opioid crisis is a lot worse now than it was then, but the drug companies behaved a lot worse then than they do now.
First of all, there were actual criminal charges, not just lawsuits, and those charges resulted in more than $600 million in fines and fees for Purdue and its executives. The company had willfully misled doctors and regulators about the addictive potential of its drugs — sometimes using methods straight out of Christopher Buckley’s Thank You for Smoking, as the New York Times reported at the time:
When the painkiller was first approved, F.D.A. officials allowed Purdue Pharma to state that the time-release of a narcotic like OxyContin “is believed to reduce” its potential to be abused.
But according to federal officials, Purdue sales representatives falsely told doctors that the statement, rather than simply being a theory, meant that OxyContin had a lower potential for addiction or abuse than drugs like Percocet. Among other things, company sales officials were allowed to draw their own fake scientific charts, which they then distributed to doctors, to support that misleading abuse-related claim, federal officials said. [Emphasis added.]
That same year, Purdue reached a consent judgment with 26 states — including Ohio and Washington — and D.C. involving its marketing practices, particularly its promotion of “off-label” uses of OxyContin. (Doctors can prescribe drugs for purposes not approved by the FDA, but companies cannot actively promote such uses of their drugs.) The judgment required Purdue to pay the states nearly $20 million and to monitor the abuse and diversion of its drugs. The monitoring program Purdue set up appears technologically formidable, even if company officials do not always act on the information it produces, as in the case of Lake Medical.
In 2010, Purdue took a concrete step to deter the abuse of its signature drug: It released a new version of OxyContin that is harder to crush up and thus harder to snort or inject — methods that give the user the entire dose at once rather than releasing it over many hours. It’s perfectly possible to abuse pills by simply taking them, of course, but the change did seem to have an effect on serious addicts: It caused many of them to switch from OxyContin to heroin, which is chemically similar.
There is a good case to be made that Purdue’s aggressive marketing efforts in the 1990s and early 2000s helped lay the groundwork for the opioid epidemic. Ten years after the previous round of criminal charges and settlements, though, no one can plausibly claim not to know that Oxy is addictive, and the blame deserves to be distributed much more widely. In addition to drug makers and wholesalers who fail to monitor their sales effectively — lapses that, yes, should be punished when they can be proven — there are pharmacies that sell drugs to illicit buyers, corrupt doctors who prescribe to addicts and dealers, patients who sell their pills or give them away to friends, gangs that traffic narcotics, and of course individuals who get hooked by crushing pills to get high.
Suing drug companies might make us feel better. There’s a small chance it might even work in court. But curing America’s addiction to opioids will be far more difficult.