Opioid makers argue for separate consideration in trial

Drug companies accused jointly of contributing to the state's opioid epidemic, said they should be treated as separate entities in day two of a $50 billion civil bench trial in Los Angeles.

The plaintiffs are four municipalities that say opioid giant Purdue Pharma and others misleadingly downplayed addiction risks.

Claims against Purdue Pharma, arguably the most criticized pharmaceutical company named in the lawsuit, were stayed before trial began Monday, pending its bankruptcy case.

However, with 200 people watching the Orange County trial via Zoom, attorneys for four other companies -- Teva Pharmaceuticals, Endo Pharmaceuticals Inc., Allergan PLC and Johnson & Johnson subsidiary Janssen Pharmaceuticals Inc. -- continued opening statements Tuesday against the false advertising allegations.

Chicago attorney Donna M. Welch of Kirkland & Ellis LLP, representing Allergan, the maker of the opioid medication Kadian, said plaintiffs' attorneys must make allegations against each drug company separately. Allergan produced a fraction of a percentage of the opioid drugs prescribed in California between 2009 and 2020, she said in her opening statement.

"W believe, your honor, at the end of the trial, you will have seen no evidence that Kadian marketing ever copied the aggressive marketing of Purdue back in the 1990s," Welch said. "You will not see any evidence that Kadian marketing expanded the opioid market in the plaintiffs' jurisdiction, that there was any over prescribing of Kadian in the plaintiffs' jurisdictions or even that one single prescription for Kadian in the plaintiffs' jurisdictions should not have been written."

The drugmakers are accused of helping to create an opioid epidemic in California by violating the public nuisance, unfair competition, and false advertising laws. They are accused of making statements to promote the use of opioids to treat chronic pain that omitted or concealed material facts, and failing to correct prior misrepresentations and omissions about the risks and benefits of opioids.

Representing the people of California, the suit was jointly filed in 2014 by the Santa Clara County Counsel's Office, Orange County District Attorney's Office, the Los Angeles County Counsel's Office, and the Oakland City Attorney's Office.

Connecticut attorney Michael Pendell of Motley Rice LLC, representing the people, called an expert witness, medical historian and professor David Herzberg of the University at Buffalo. Herzberg testified to the history of opioid prescriptions and use in the U.S. and California. With all four drug companies' counsel regularly objecting, much of his testimony was stifled.

Along with several of his statements, stricken from the record were plaintiffs' documents that were not admitted on hearsay, speculation, narrative, and Sanchez grounds. Visibly frustrated, Pendell eventually appealed to Orange County Superior Court Judge Peter Wilson, asking how to proceed.

"Your honor, I'm sort of struggling here," Pendell said. "This is a government report. Am I supposed to subpoena someone from the United States Senate to authenticate this document to get it in? I'm not trying to be smart. I'm just I don't know what to do."

Wilson said a report appearing to be issued by the U.S. Senate Committee on Homeland Security & Governmental Affairs and appearing to outline the financial connections between opioid manufacturers and advocacy groups discussing opioids policy, could not be authenticated by Herzberg and was hearsay.

Of the similar actions ongoing in a multi-district litigation in Ohio, a federal lawsuit in Northern California, and the state lawsuits in Los Angeles and Orange counties, the Orange County action is the most developed. As the first opioid case in the state to go to trial, the Orange County matter could create a road map for global settlements throughout the nation.

In addition to civil penalties, the people seek approximately $50 billion in funds to abate the opioid crisis in the plaintiff counties and city, according to attorneys involved in the suit. People v. Purdue Pharma et al., 14-00725287 (Orange Super. Ct., led May 21, 2014).