Plaintiffs close false advertising case against drugmakers

Wrapping up their $50 billion false advertising case Tuesday in Orange County, the people played deposition tapes of drug company employees who marketed opioids as a treatment for noncancer pain, a use not approved by the Food and Drug Administration, the state's attorneys say.

Cephalon Inc., one of the pharmaceutical companies accused of fueling the state's opioid crisis by deceptively marketing its products, paid $425 million and entered a plea in 2008 to resolve allegations that it engaged in off-label marketing of its fentanyl drug Actiq, a former public relations manager acknowledged in a deposition tape.

The people, represented by four prosecuting agencies, say drug companies paid opinion leaders, patient groups and researchers to endorse the use of opioids for the treatment of noncancer pain despite the FDA only approving their use for cancer pain. Messages such as "pain is pain," in marketing materials given to sales representatives were designed to encourage doctors to prescribe opioids for off-label uses, also known as non-FDA-approved uses, the state's attorneys argued.

"Cephalon instructed the Actiq sales representatives to focus on physicians other than oncologists, including general practitioners, and to promote this drug for many uses other than breakthrough cancer pain," read an attorney taking the deposition of former Cephalon public relations manager Stacy Beckheardt.

Asked if she spoke to anyone at Cephalon about her concerns regarding the off-label marketing of Actiq, Beckheardt said she had, but couldn't remember what her supervisor told her in response.

Along with the Oakland city attorney's office, arguing for the people of California are the Santa Clara County counsel's office, Orange County district attorney's office and the Los Angeles County counsel's office,

Before concluding their case in chief Tuesday, the people, led by Rhode Island plaintiffs' attorney Fidelma L. Fitzpatrick of Motley Rice LLC, tried to admit more than 200 additional documents. However Superior Court Judge Peter Wilson, who has repeatedly admonished both sides for wasting court time, said he was frustrated by the untimely attempt to admit such a voluminous amount of documents.

Of the similar actions ongoing in a multidistrict 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 case of its kind in the state to go to trial, it could create a road map for global settlements, not only in the lawsuits in California but throughout the nation.

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

The defendant companies are Cephalon's parent company, Teva Pharmaceuticals, Endo Pharmaceuticals Inc., Allergan PLC, and Johnson & Johnson subsidiary Janssen Pharmaceuticals Inc. Purdue, also a defendant, is sitting out the civil trial pending its bankruptcy proceeding in New York.

Last week, Fitzpatrick said the four drug companies have 45 potential witnesses on their list to call. However, that list is expected to be trimmed by the time the defense begins their case as early as next week.

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).