Drug companies open defense with opioid advocate

Pharmaceutical companies accused of fueling the opioid crisis in California began their case in chief Monday in a $50 billion bench trial in Orange County.

Four opioid manufacturers including Allergan PLC, the maker of the morphine pill Kadian, are accused by four California communities of false advertising and creating a public nuisance by allegedly downplaying the risks of opioid addiction in their marketing.

Represented by Chicago attorney Donna Welch of Kirkland & Ellis LLP, Allergan called the first defense witness, a Harvard pain management specialist, Dr. Carol Warfield. She testified via Zoom that opioids are essential medications that are highly effective for the treatment of pain, including noncancer pain. She also said she was concerned that patients in need of opioids were not getting them because the cultural "pendulum" had swung toward opioid disapproval in recent years.

"The pendulum has swung towards being too opposed to opioids," Warfield said during direct examination. "Taking opioids for a long period of time doesn't necessarily always result in addiction," she later added.

The four government plaintiffs, represented by Rhode Island attorney Fidelma L. Fitzpatrick of Motley Rice LLC, began its seven-week case in April before Superior Court Judge Peter Wilson paused the trial to consider defendants' motions to dismiss. Although Wilson denied those motions, the plaintiff counties of Los Angeles, Orange and Santa Clara, along with the city of Oakland, voluntarily dismissed two subsidiary drug company defendants earlier this month.

The remaining defendant companies -- Teva Pharmaceuticals, Endo Pharmaceuticals Inc., Allergan and Janssen -- are accused of helping to create an opioid crisis in the state from 1997 to 2017 by deceptively marketing prescription opioids as rarely addicting.

However, Warfield testified Monday that she did not see anything in Allergan's marketing material saying or implying opioids are rarely addicting.

Despite Fitzpatrick's objections to Warfield's testimony, arguing that because she was not a marketing expert, she shouldn't be allowed to opine about Allergan's marketing material, Wilson allowed the testimony to proceed.

Warfield later testified under cross-examination that she was paid by Purdue Pharma and other drug companies in the late 1990s to give speeches in support of the use of opioids for pain management.

Purdue, also a defendant, is sitting out the trial, pending the completion of a bankruptcy case in New York. Purdue's founder, the Sackler family, who are said to be worth over $10 billion, have floated a $4.3 billion bankruptcy plan that would shield them from further opioid litigation. While some states and municipalities are in favor of the plan, 24 states oppose it and argue the Sacklers should pay more to abate the opioid crisis.

The outcome of the case in Orange County, being tried remotely, will likely affect thousands of settlements in lawsuits filed nationwide by states and municipalities.

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