(CN) — The four remaining defendants in San Francisco's long-awaited opioid lawsuit denied playing anything more than bit parts in the country's drug epidemic, which has killed nearly half a million people.
"My client is a small cog in a highly regulated machine," said James Matthews, attorney for drug wholesaler Anda, Inc., in his opening statement Tuesday, the second day of the bench trial. He called San Francisco's civil suit "a frontal assault on the way medications are prescribed," an "effort to second guess the FDA and DEA," and "a radical attack on the medical establishment."
On Monday, San Francisco's lawyers had argued that the four defendants — Anda, the pharmacy chain Walgreens, and two drugmakers, Teva Pharmaceuticals and Allergan — had all contributed to the city's oversupply of opioids, which spurred an epidemic of addiction and overdose amounting to a "public nuisance." But lawyers for the defendants argued, on Tuesday, that blame for the crisis ought to be directed elsewhere, namely at Oxycontin inventor Purdue Pharma where aggressive sales tactics increased the opioid market exponentially.
But Purdue declared bankruptcy in 2020, a move which led to the settlement of thousands of lawsuits against it, including the one filed by San Francisco. Other big-name defendants, including Johnson & Johnson and McKesson, have also settled with San Francisco.
"The effect that Purdue had on the problem we face today is undeniable," said Collie James, Teva's lawyer. "But we are not Purdue, and the evidence will not support the attempt to redirect blame, just because my clients sell opioids." James went on to call the lawsuit an elaborate act of misdirection, an effort "to divert attention away from a federal and state system that encouraged opioid prescriptions."
Attorneys for the drug companies pointed out that their marketing, which has been called aggressive and misleading by the plaintiffs, was actually approved by the FDA. They also told U.S. District Judge Charles Breyer that opioids made by their clients accounted for a small fraction of the opiates sold in San Francisco.
"My client's efforts, right or wrong, never amounted to anything more than an imperceptible blip in the opioid market," said James, noting that the opiates that Teva sold, Fentora and Actiq (both lozenges approved by the FDA to treat extreme pain in cancer patients), accounted for just 0.09% off all opiates sold in San Francisco. And Allergan's attorney, Hariklia Karis, said that Allegren's opioids, Norco and Kadian, accounted for just 0.72% of San Francisco's market share.
"Their market share was minuscule, tiny and not influential," said Karis.
By contrast, Oxycontin accounted for more than half of the prescription opioids legally sold in San Francisco between 2008 an 2017.
In their opening arguments, San Francisco's attorneys said Walgreens corporate management had pressured pharmacists into filling prescriptions quickly, leading employees to feel that they didn't have time to scrutinize suspicious opioid orders. But Walgreens attorney Kate Swift said their pharmacists refused to fill prescriptions "many, many times and [were] never punished for it." Swift pointed to data showing that most pills that people abuses are obtained from friends and family members, and she argued that the pharmaceutical chain — the second-largest in the country — has taken numerous steps to curb drug abuse.
A key issue in the trial could be the so-called "paradigm shift," in the words of San Francisco's attorneys, the momentous change in public policy that allowed and even convinced doctors to prescribe incredibly strong opiates for chronic pain, something that hadn't been done since the 1990s. Many have blamed Purdue Pharma for funding advocacy groups, which convinced regulators and policy makers that chronic pain was a serious problem in society and needed to be treated with pain killers. Purdue also sent platoons of sales representatives to meet doctors, face-to-face, and convince them that Oxycontin was not addictive.
San Francisco's attorneys said Monday that the the three drug company defendants helped bring about this paradigm shift with their own deceptive marketing campaigns.
Perhaps surprisingly, Teva's lawyer James defended the "paradigm shift" as a necessary one, essentially defending powerful opiates as necessary in the treatment of chronic pain. The other lawyers, meanwhile, focused on their clients' small market share. Attorney Hariklia Karis said Allergan only had one or two sales representatives in the entire state of California at any given time, and that they visited only 31 prescribers of their drugs. All that ceased at the end of 2012.
Testimony begins Wednesday, when author and psychiatrist Dr. Anna Lembke takes the stand as an expert witness for the plaintiffs.
"This is a marathon," said Judge Breyer shortly before court adjourned Tuesday. "It’s a bellwether case. I want the parties to be able to say their case."
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