Drug company lawyers grill historian in opioid trial

A medical historian testified Wednesday that pharmaceutical giant Purdue Pharma and other drug companies were aware of the opioid crisis while aggressively marketing opioids in the early 2000s, during the third day of a $50 billion virtual bench trial in the Orange County Superior Court.

Representing the state, which claims Purdue and other drugmakers, through false advertising of opioids, contributed to a crisis, Connecticut attorney Michael Pendell of Motley Rice LLC asked professor David Herzberg of the University at Buffalo if he knew of any evidence suggesting the companies were not aware of the crisis.

"I saw evidence they were tracking the issue quite closely," Herzberg said. "All defendants except Allergan were tracking this problem at this time."

With at least 200 people listening via Zoom, separate attorneys for the four main drug company defendants -- Teva Pharmaceuticals, Endo Pharmaceuticals Inc., Allergan PLC and Johnson & Johnson subsidiary Janssen Pharmaceuticals Inc -- implied in their cross-examinations that Purdue and not their clients was the driving force behind an aggressive marketing campaign designed to ramp up opioid sales.

"Most observers trace the unprecedented rise in opioid addiction to the crisis of aggressive marketing of oxycontin by Purdue, right?" asked Moez M. Kaba of Hueston Hennigan LLP, who represents Endo.

"I would characterize them as saying ... that Purdue pioneered the tactics. I'm not aware of anyone who argues that it was just Purdue," Herzbeg replied.

Since the first day of the bench trial, the four companies have seemingly tried to distance themselves from Purdue, arguing before Judge Peter Wilson that they should be regarded as separate entities and not lumped into one group.

Although Purdue is the first named defendant and perhaps the most criticized of all the drug companies that have been sued in recent years over alleged contribution to the country's opioid crisis, the pharmaceutical giant is not participating in the trial. The claims against it were stayed pending a bankruptcy proceeding.

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

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

The outcome of the trial will likely provide a roadmap for thousands of settlements of similar lawsuits throughout the nation. Of the similar actions ongoing in a multidistrict litigation in Ohio, a federal lawsuit in Northern California, and state lawsuits in Los Angeles and Orange counties, the Orange County action before Wilson is the most developed.

In addition to civil penalties, the people seek $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).