Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Pain Killer Lawsuits: An Open Letter to Peter Angelos and Steve Silverman

Warnken, LLC

July 31, 2014

 

Mr. Peter Angelos, Esq.

100 N. Charles Street

Baltimore, MD 21201

 

Mr. Steven Silverman

201 N Charles St.

Baltimore, MD 21201

 

Dear Mr. Angelos and Mr. Silverman,

Painkiller manufacturers and distributors need to be sued into submission.  Manufacturers and suppliers have a duty to consumers and society that is not being met.

Although I would love to pursue a lawsuit on behalf of a government against the manufacturers and distributors of narcotics, I am simply too small.  My small law firm represents the Maryland Troopers Association and handles workers’ compensation, and is simply not equipped to handle a suit of that size.  But each of you have the capability.  In the case of Mr. Silverman, you have some recent experience that makes you uniquely qualified.  I urge you both to take a very serious look at this potential lawsuit.

Some statistics:

  • Americans, constituting only 4.6% of the world’s population, have been consuming 80% of the global opioid supply, and 99% of the global hydrocodone supply
  • In 2012, health care providers wrote 259 million prescriptions for painkillers – enough for every American adult to have their own bottle of pills.
  • In 2007, doctors prescribed painkillers to 18% of people who report taking pills for “nonmedical” uses, while 57% report getting the pills from someone they know.
  • A 2011 report by the National Association Board of Pharmacy reviewed more than 8,000 online pharmacy websites, and found that 6,812 (more than 85%) do not require valid prescription; 3,687 offer foreign or non FDA approved drugs; 2,100 have a physical address located outside of the U.S.; and 2,878 have server locations in foreign countries.
  • The painkiller epidemic brought in at least $820 million in revenue for FedEx from 2000 to 2010
  • According to the Clinical Journal of Pain and Coalition Against Insurance Fraud, the potential overall cost of painkiller abuse at more than $72 billion a year in 2007 dollars.

Recent Lawsuits

Orange and Santa Clara counties in California have filed a lawsuit against five of the world’s largest narcotics manufacturers, Purdue Frederick Co., Purdue Pharma L.P., Purdue Pharma Inc., Teva Pharmaceutical Industries, Ltd., Cephalon, Inc., Johnson & Johnson, Endo Health Solutions Inc. and Actavis, PLC, for allegedly propelling the drug epidemic in order to increase sales. The suit is being handled by Robinson Calcagnie and others.  The lawsuit claims that the manufacturers launched a “campaign of deception” toward the American public by aggressively promoting painkillers or opioid pain relievers like Vicodin, OxyContin, Percocet, and Valium, as “miracle cures for chronic pain.” Americans, constituting only 4.6% of the world’s population, have been consuming 80% of the global opioid supply, and 99% of the global hydrocodone supply. This disproportional usage reflects one of the largest and most serious epidemics of our time, and very little is being done to stop it. The city of Chicago has also filed suit.

According to assistant Orange County Counsel Danny Chou, pharmaceutical companies have not only deceived doctors about the risks and benefits of the drugs, but they have also funded seemingly independent advocacy organizations like the American Pain Foundation to encourage their use. Though doctors certainly don’t want their patients getting addicted to the pills, they are susceptible to the manufacturers’ shameless promotion. To make matters worse, many physicians do not have much training in addiction or pain management – it is reduced to a quick lesson in medical school when it really should be a larger emphasized section. Accordingly, because doctors don’t always recognize the dangers and the abusers are often white, young, and affluent, painkiller abuse has been called “white collar addiction.” These abusers can shop around for doctors who are willing, both knowingly and unknowingly, to write scripts for unnecessary painkillers. In 2012, health care providers wrote 259 million prescriptions for painkillers – enough for every American adult to have their own bottle of pills. Similarly, in 2010, enough painkillers were prescribed to medicate every American adult around the clock for one month. That volume of scripts is out of control, yet the regulating forces are doing close to nothing to fix it. The whistle is blown so little on these script-happy doctors, that the profits of overly prescribing the drugs often outweigh the potential legal cost and professional risk. To be sure, in 2007, doctors prescribed painkillers to 18% of people who report taking pills for “nonmedical” uses, while 57% report getting the pills from someone they know. In 2010, 12 million people reported using prescription painkillers nonmedically, teenagers being particularly affected. Narcotic painkillers are the second most widely used drug among 12-17 year-olds (7%), the first being marijuana (13%). It is possible that younger people are more inclined to use the painkillers they are perceived as legal and safe compared to street drugs.

Rogue Distribution

To make it even easier for tech savvy youth to get their hand on the drugs, there are online pharmacy websites, known as “pills mills,” based overseas that provide painkillers without a prescription. A 2011 report by the National Association Board of Pharmacy reviewed more than 8,000 online pharmacy websites, and found that 6,812 (more than 85%) do not require valid prescription; 3,687 offer foreign or non FDA approved drugs; 2,100 have a physical address located outside of the U.S.; and 2,878 have server locations in foreign countries. “The fake online pharmacy crisis has reached an epidemic level – they prey on prescription drug abusers and the most vulnerable members of society who rely on medicine every day for their health,” said National Association Board of Pharmacy President Malcolm J. Broussard, RPh. “They offer easy access to potent medicines without a prescription and indiscriminately push dangerous counterfeit drugs. This problem poses a clear danger to Americans’ health and safety and weakens the essential relationships between pharmacists and patients….we are calling on pharmacists, physicians, and other health professionals to educate their patients about the growing public health threat posed by these illegal online enterprises.” But how can health care providers properly educate their patients when they, themselves, are being fooled by drug companies?

Legitimate Distribution?

The painkiller crisis, fueled, not minimized, by the medical field, has spread its breadth of impact to the delivery service business. FedEx found itself in company with UPS, Walgreen, and CVS when it got in trouble for drug trafficking and conspiracy to distribute controlled substances and misbranded drugs. In July of 2014, FedEx was charged with assisting illegal online pharmacies by knowingly delivering painkillers and dangerous drugs to customers without prescriptions on behalf of the Chhabra-Smoley Organization and Superior Drugs. FedEx allegedly delivered medications from pharmacies that required their customers only to fill out an online form, without any need for a doctor’s examination, diagnosis or prescription – knowing these practices violate federal and state drug laws. The company, however, said the shipments in question involved legal drugs with a valid prescription from online pharmacies licensed by the Drug Enforcement Administration. FedEx said out of the 10 million packages it ships each day, it has no way of telling which shipments of online pharmacy purchases are illegal. The federal grand jury in San Francisco further alleged that FedEx couriers in Kentucky, Tennessee and Virginia had warned the company as early as 2004 that their trucks were being stopped by pharmacy customers demanding packages of pills and threatening them with harm. Some of the listed delivery addresses were vacant homes or parking lots where carloads of people were waiting for their drugs. In response, the indictment said, FedEx began separating drug deliveries from problematic Internet pharmacies and holding them for pickup at company stations. But the indictment said FedEx continued to knowingly make illegal deliveries for two pharmacy groups, Superior Drugs and an organization that managed RX Network and USA Prescriptions. The painkiller epidemic brought in at least $820 million in revenue for FedEx from 2000 to 2010, but if the company gets convicted, the fine could be twice as much. The case is entitled U.S. v. FedEx Corp. (FDX), 14-cr-00380, U.S. District Court, Northern District of California (San Francisco).

One of the U.S.’s largest common carriers has been knowingly dealing drugs to Americans across the country. Dealing out painkillers has been legitimized by pharmacies, doctors, and, of course, the manufacturers so well, the chief financial officer of FedEx himself approved an additional line of credit called “Online Pharmacy Credit Policy” for their illegal deliveries. He did so after FedEx’s revenue took a hit because the DEA began shutting down the online pharmacies using FedEx’s services. According to the Wall Street Journal, attached to the new policy circulated to FedEx managing directors of sales was an explanation: “Many of these companies operate outside federal and state regulations over the sale of controlled drugs…Several sites have been shut down by the government without warning or simply disappeared leaving large balances owing to FEDEX.”

Governments and Healthcare Holding the Bag

Everybody is making money off of the nation’s painkiller problem – except for the organizations paying for healthcare and dealing with the subsequent consequences of a growing population of drug abusers. Indeed, when the financial burden, in addition to the emotional burden, doesn’t fall on the abusers and their loved ones, government that suffers the cost. And when government pays, every taxpayer pays. According to the Clinical Journal of Pain and Coalition Against Insurance Fraud, the potential overall cost of painkiller abuse at more than $72 billion a year in 2007 dollars. Pill addicts who shop around for doctors to get prescriptions cost insurers $10,000 to $15,000 apiece in 2007. The toll in lost productivity: $42 billion in 2006. The criminal justice bill: $8.2 billion in 2006. It all adds up, and it adds up fast.

Change is Needed

The goal of the suit against the narcotic manufacturer giants, brought on behalf of the entire state of California, is “to stop the lies about what these drugs do,” in addition to garnering compensation for health problems the seven plaintiffs, all former narcotics users, have faced as a direct result of using the drugs. The plaintiffs also asked the court to force the pharmaceutical companies to forfeit revenue from these drugs. They argued that although the Food and Drug Administration has approved all of the painkillers, many doctors didn’t prescribe the painkillers before the companies’ misleading marketing campaigns because they were concerned people could easily become addicted. Thousands of narcotics users share the same story: they are prescribed pills for pain, their tolerance grows, they become addicted to the high, and they suffer the potentially fatal consequences of being a drug addict. No one decided to get addicted to prescription pain pills, but almost 75% of overdoses are due to prescription painkillers, and almost all start out as legal prescriptions. Like many abused drugs, opioids stimulate the areas of the brain that perceive pleasure.

The lawsuit uses similar language, tone, and concept as the tobacco industry lawsuits.  Dishonest marketing strategy, not medical breakthroughs, made painkillers as popular as they are today. The lawsuit alleges that the manufacturers should be held responsible for the more than 16,000 deaths involving painkillers each year. This is more than the deaths caused by cocaine and heroine combined. The unprecedented rise in overdose deaths in the U.S. parallels a more than 300% increase between 1999 to 2010 in the sale of these strong painkillers. The lawsuit is “a matter of public protection,” said District Attorney Tony Rackauckas, given that there are painkiller-related deaths every other day in Orange County. Not to mention, the popularity of narcotics has allegedly triggered a resurgence in the use of heroin, which produces a similar high to opiate-based painkillers, but is cheaper.

This is not the first time lawsuits have been filed against pharmaceutical companies in order to force them to take responsibility for the drugs they produce. There have been a handful of suits since 2000. Of note in 2007 was a case in which Purdue agreed to pay $635 million to settle criminal and civil charges by the federal government and several states that it had underplayed OxyContin’s addiction risk to persuade doctors to prescribe it.

The problem represented by this lawsuit stems from the pharmaceutical companies that put profit before patient care. As Rackauckas said, “In order to put money in their pockets, they’ve done serious harm to many thousands of people.” Instead of accepting liability, taking responsibility for the goods and services they provide, the companies rely on an inept government to police their products. Manufacturers aren’t even paying the taxes needed to fund “the war on drugs” – they domicile themselves overseas to cut their tax bills. As such, the executives of the pharmaceutical manufacturers are more than happy to wash their hands of culpability. If they were to crack down on drug misuse themselves, they’d lose immense revenue and their share prices would drop.

Purdue, Teva, Cephalon, Johnson & Johnson, and Endo Health Solutions need to be held accountable for the epidemic they’ve created. In doing so, not only would thousands of lives be saved, but medical professionals would also be reminded to think very carefully about the power of their scripts.  The money is obviously blinding; big pharma and their doctor beneficiaries are content profiting at the expense of the vulnerable. No one else is incentivized to do anything about the epidemic but the good faith attorneys protecting the public’s wellbeing. California and Chicago are taking steps to right the wrongs of corporate America, Maryland can and should be next.  I urge you both to consider pursuing this in the interest of justice.

 

Sincerely,

Byron B. Warnken, Esq.

Warnken, LLC