(CN) — The trial for San Francisco's long-awaited "public nuisance" opioid lawsuit finally began in federal court Monday, with a fraction of the defendants that were named when the complaint was first filed in 2018.
Back then, Oxycontin maker Purdue Pharma, whose drug that kicked off an epidemic of opioid abuse that has claimed nearly half a million lives in the U.S., was the marquee defendant. But Purdue declared bankruptcy, and effectively settled claims brought about by hundreds of governmental entities and other plaintiffs during the bankruptcy proceedings. Many of the other drugmakers and distributors named in the suit have also since reached settlements, including Johnson & Johnson, Malinkrodt, Insys and McKesson. Just last week, Endo Pharmaceuticals settled the case for $10 million.
That leaves just four defendants — Walgreens, the second-largest pharmacy chain in the country, Anda, a pharmaceutical distributor and two drugmakers, Teva and Allergan. Lawyers for San Francisco charged the four companies with jumping on Purdue's opioid bandwagon, "marketing opioids as a 'risk-free panacea' for all forms of pain," according to attorney Aelish Baig in her opening statement to the court on Monday.
The bellwether bench trial, held before U.S. District Judge Charles Breyer, is expected to last months. City attorneys have stated they intend to call more than 80 witnesses. Each of the four defendants will also present their cases and call witnesses.
According to San Francisco, the four defendants followed Purdue's playbook by aggressively marketing opioids to doctors, pressuring sales teams to meet ever-increasing quotas and helping to propagate the myth that opiates are harmless, that drug seeking behavior by patients who'd been prescribed opioids isn't addiction, but "pseudo-addiction," and therefore of no concern. They then ignored all warning signs that some doctors were overprescribing and many patients had grown addicted to the drugs, and failed to report easy-to-detect malfeasance to regulators, the city says.
"The defendants' conduct promoted the increased supply and widespread access of opioids," said Richard Heimann, an attorney representing San Francisco in the suit, leading to a five-fold increase in opioid shipments into San Francisco.
Roughly a quarter of all emergency room visits are related to opioid use, according to Heimann.
Baig said that in 2019 there were more than 40,000 living with opioid use disorder — more commonly referred to as addiction — in San Francisco, a city of roughly 874,000 residents. The city, she said, has borne the cost of the opioid crisis, not just in lives lost but in expenditures for emergency room nurses, cops and firefighters, even librarians, some of whom must now be trained to use naloxone, which treats opiate overdoses.
The "public nuisance" legal strategy against drugmakers for causing, or at least fueling the opioid crisis has had a spotty track record in the U.S. This past November, an Orange County Superior Court judge ruled in favor of the defendants, four pharmaceuticals — including Teva — in a suit brought by four cities and counties. That same month, an Oklahoma Supreme Court overturned a $465 million ruling against Johnson & Johnson, rejecting the public nuisance argument.
San Francisco will have to convince Judge Breyer that the public nuisance law applies to drug companies' behavior in the last 20 years. It will also have to make the case that Walgreens, Anda, Teva and Allergan were more than just bit players in the crisis, that their behavior was important in creating the "paradigm shift" which "helped fuel the crisis," as Heimann put it during his opening statement.
A key part of San Francisco's case will be how employees of the four companies were pressured to sell more and more opiates. Heimann told the court that Walgreens pharmacists were under "constant pressure" by corporate management to "to fill and fill quickly” opioid prescriptions. The pharmacy chain, which Heimann said was the leading dispenser of opiate prescriptions in the city, had a policy that every prescription be filled within 15 minutes. That mean, Heimann said, that pharmacists had little time to verify the authenticity of prescription, or to check if patients had been prescribed too much. Pharmacists, he said, were "often penalized for failing to fill prescriptions for controlled substances."
One Walgreens corporate document, introduced into the record, read, "The best evidence of a well-run pharmacy is the increase in prescriptions and pharmacy sales."
Plaintiffs say the drugmakers similarly pressured sales representatives to convince doctors to hand out more opioid prescriptions, and at higher doses. Plaintiff attorneys played videos that Teva made to rally its sales force, parodies of movies like "Glengarry Glen Ross" and "A Few Good Men," with the dialogue in the films dubbed over to portray Teva salesmen pressured to meet quotas for number of prescriptions for Fentora, a brand name drug made from fentanyl, which was approved by the FDA to treat cancer patients' pain.
"Teva will say these videos were intended to be funny," said Baig. "But we're talking about fentanyl here. This drug was only approved for cancer patients."
The defendants are scheduled to make their opening arguments Tuesday.
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