Oklahoma Attorney General Sues Pharmaceutical Companies

June 30, 2017 – Oklahoma Attorney General Mike Hunter sued more than a dozen pharmaceutical companies Friday — accusing them of making fraudulent marketing claims that greatly understated the addictive risks of opioid painkillers while overstating the treatment benefits.

“We’ve had almost 3,000 overdose deaths in the last three years in Oklahoma,” Hunter said. “We need to hold these people accountable. Manufacturers have in a consistent and … coldblooded fashion marketed these drugs in a way that has misrepresented their tendency to be addictive and the extent to which they can be deadly.”

The lawsuit does not specify the dollar amount the state will be asking the drug companies to pay, but Hunter indicated it could be in the “billions of dollars.”

Hunter said it is his hope that a substantial amount of money can be recovered and that a large part of it can be used to combat drug addiction in the state, treating addiction as an illness rather than a crime.

“We’ve got to invest more in rehabilitation in this state,” he said.

Johnson & Johnson, Purdue Pharma LP, Cephalon Inc., Teva Pharmaceuticals USA Inc., Allergan PLC and Janssen Pharmaceuticals Inc. are among the drug companies named as defendants in the lawsuit, which was filed Friday in Cleveland County District Court.

Hunter said Cleveland County was selected because it has a good mix of urban and rural areas and the state’s drug addiction problem impacts all kinds of people.

“We believe these companies are culpable for the tragic, heartbreaking number of Oklahomans who have become addicted or who have died as a result of the opioid epidemic in our state,” Hunter said at a news conference Friday.

“By waging a fraudulent, decades-long marketing campaign to profit from the suffering of thousands of Oklahomans, these companies have made in excess of $10 billion a year, while creating a generation of Oklahomans who have become addicts, convicts or have met their deaths from opioid overdoses.” he said.

“Today, we begin a fight to hold these companies accountable,” he declared.

A partial list of opioid drugs the various companies manufacture includes OxyContin, Dilaudid, Kadian, Actiq, Fentora, Duragesic and Nucynta.

Drug companies’ reaction

Drug company officials defended the actions of their companies Friday.

“Teva is committed to the appropriate promotion and use of opioids,” said Nancy Leone, a spokeswoman for Teva. “We have programs in place that educate prescribers, pharmacists and patients on the responsible use of these products. We are committed to working with the health care community, regulators and public officials to collaboratively find solutions.”

William Foster, spokesman for Janssen Pharmaceuticals Inc., said his company recognizes that opioid abuse is a serious public health issue that must be addressed.

“At the same time, we firmly believe Janssen has acted responsibly and in the best interests of patients and physicians with regard to these medicines, which are FDA-approved and carry FDA-mandated warnings about possible risks on every product label,” Foster said.

Since 2015, Janssen has made several business decisions designed shift the company’s focus to other areas of unmet medical needs and no longer promotes any opioid pain medications, a company official said.

Mississippi, Ohio and Missouri all previously have filed similar lawsuits against pharmaceutical companies.

What the lawsuit says

Oklahoma’s lawsuit paints a bleak portrait of the alleged human and financial carnage that the abuse of opioid prescription drugs has inflicted on Oklahoma and the rest of the nation.

“From 1999 to 2015, more than 183,000 people died in the U.S. from overdoses related to prescription opioids,” the lawsuit states.

Oklahoma has been particularly hard hit, the attorney general said.

“Drug overdose deaths in Oklahoma increased eightfold from 1999 to 2012, surpassing car crash deaths in 2009,” the lawsuit said. By 2015, the number of Oklahoma drug overdose deaths had reached 823, with the number of prescription drug overdose deaths greater than the number of overdose deaths from “alcohol and all illegal drugs combined.”

The lawsuit blames the drug companies for exacerbating the problem through “false and deceptive marketing campaigns.”

The lawsuit cites several marketing practices that were allegedly deceptive, including Purdue’s distribution of a promotional video that claimed “the rate of addiction amongst pain patients who are treated by doctors is much less than 1 percent.”

The same marketing video claimed “they do not have serious medical side effects,” the lawsuit states.

Contrary to that claim, the lawsuit contends “as many as one in four people prescribed opioids long term for noncancer pain in primary care settings struggles with opioid addiction.”

The attorney general alleges drug companies marketed their opioids through “clandestine channels” in Oklahoma and elsewhere, paying doctors to serve as consultants and funding third-party organizations that had the deceptive appearance of being independent.

“Defendants utilized and funded these organizations to spread their misrepresentations by downplaying the risks of addiction of opioids and (touting) the benefits of use for conditions like chronic pain,” the lawsuit states.

Through “misrepresentations and omissions,” drug companies were able convince doctors and patients that signs of addiction in patients were actually “signs of ‘pseudoaddiction’ requiring heavier doses of opioids.”

The marketing has been extremely successful, with sales of OxyContin, alone, rising from $48 million in 1996 to $3 billion by 2009, the lawsuit states.

The consequences for Oklahoma have been “catastrophic,” Hunter said.

Addiction in Oklahoma

In a 14-county area of northeastern Oklahoma, there were enough opioid pills prescribed in 2016 to provide every man, woman and child with 90 pills, Hunter said, citing data gathered by the Cherokee Nation through its examination of records created through a prescription monitoring program operated by the Oklahoma Bureau of Narcotics and Dangerous Drugs Control.

The Cherokee Nation filed its own tribal court lawsuit against several large pharmacies and distributors in April.

In addition to thousands of deaths, the misuse of prescription painkillers has cost Oklahoma billions of dollars in extra costs for health care, law enforcement and addiction treatment, Hunter said.

“Our goal is to compensate the state for taxpayers’ dollars that have had to be expended to address what has gone on in the state with regard to opioids that are literally flooding into the state,” he said.

The lawsuit accuses the drug companies of violations of the Oklahoma Medicaid False Claims Act and Oklahoma Consumer Protection Act. It also alleges fraud, constructive fraud, unjust enrichment and that the companies have acted as a public nuisance.

The attorney general is asking for a jury trial. He wants the drug companies to pay both actual and punitive damages, as well as be ordered to pay back their “ill-gotten gains.”

State’s legal team

The case has been assigned to Cleveland County District Attorney Thad Balkman, a former state representative.

Hunter has retained outside legal counsel to assist his office with the lawsuit.

Helping Hunter represent the state will be the Whitten Burrage law firm of Oklahoma City; attorney Glenn Coffee of Oklahoma City; and Nix, Patterson & Roach LLP, a firm based in Austin, Texas.

Hunter said he selected the Whitten Burrage firm because of the legal talents of Mike Burrage and Reggie Whitten and their high degree of motivation.

“Both Mike and Reggie have experienced tragedies in their families with respect to opioid overdoses,” Hunter said. “I’m hiring somebody in behalf of the state that is going to have the interests of the state paramount and somebody who is going to have altruistic motivations here.”

Burrage said his niece was a victim of drug abuse, as was Whitten’s son.

Coffee is a former Oklahoma secretary of state and Senate president pro tem.

Nix, Patterson & Roach was one of five firms that represented the state of Texas in successful litigation against the tobacco industry and has experience suing pharmaceutical companies.

Burrage said opioid abuse has cost Oklahoma in a variety of ways.

“Oklahoma’s economic loss is in the billions of dollars for health care costs, costs on the criminal justice system, work productivity, injuries to workers, absenteeism, unemployment — the list just goes on and on,” Burrage said.

“We have two goals in this lawsuit,” he said. “One is to recover the economic loss to the state of Oklahoma. But we also hope to make a change in the way that these companies do business and want to stop these fraudulent marketing tactics.”

“They need to be honest when they make representations to doctors,” he said.

The filing of Friday’s lawsuit opens a new battlefront in Attorney General Hunter’s efforts to combat Oklahoma’s opioid abuse epidemic.

A week ago, he charged Midwest City doctor Regan Ganoung Nichols with five counts of second-degree murder, accusing her contributing to the deaths of patients by prescribing excessive amounts of opioids.

Earlier, he worked with the Legislature to create a new Oklahoma Commission on Opioid Abuse that will work to create new policies to help bring more control to the prescribing and use of opioid painkillers. In announcing the task force, Hunter said last April that he wouldn’t hesitate to use the powers of the state’s multicounty grand jury to obtain data from pill manufacturers.

By Randy Ellis, NewsOK
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