No evidence promotion increases opioid use, economist testifies

Pharmaceutical companies accused of fueling an opioid crisis in California continued their case in chief Tuesday in a $50 billion bench trial in Orange County while a similar jury trial, focused on the entire opioid supply chain, began in New York with opening arguments.

The two massive lawsuits name some of the same defendants and their outcomes will likely affect some 3,000 lawsuits filed nationwide.

Represented by Chicago attorney Donna Welch of Kirkland & Ellis LLP, Allergan PLC, the makers of the morphine medication Kadian, called Margaret Kyle, an American economist living in France, to rebut the plaintiffs' claim that false and aggressive advertising by Allergan fueled an opioid crisis.

Of the 87,181 opioid prescribers in the plaintiffs' jurisdictions, only 200 prescribed Kadian between 1997 and 2017, Kyle testified. She also said she did not identify a significant correlation between promotional visits from Allergan salespeople and rates of doctors prescribing Kadian. In many cases, she said, Kadian prescriptions declined after promotional visits.

"There is no evidence consistent with the conclusion that the promotion of Kadian increased the prescriptions of Kadian," Kyle said on direct examination.

Arguing for the plaintiff counties of Los Angeles, Orange and Santa Clara, and the city of Oakland, Rhode Island attorney Michael Pendell of Motley Rice LLC, said Kyle had "cherry picked" the data and failed to take into account the effects of other forms of advertising such as emailed brochures, mailed coupons or generic advertisements for opioids in general.

Before being cut off by a sustained objection from Welch, Pendell asked Kyle if she knew whether her current country of residence, France, used prescription opioids "significantly less than in the U.S." and if an opioid crisis had occurred there recently.

"As someone who lives in France and reads the news in France and works on opioid litigation in the United States, is France in the midst of an opioid public health crisis?" Pendell asked.

The lawsuit in California is the first government initiated case to reach trial and attempt to hold pharmaceutical companies accountable for an opioid crisis. The lawsuit in New York brought by the state's attorney general, is the first to focus not only on the drug manufacturers but the pill suppliers and pharmacies.

Both lawsuits name overlapping defendants Purdue Pharma and Johnson & Johnson subsidiary Janssen pharmaceuticals. However, Purdue is sitting out both trials pending an ongoing bankruptcy and Janssen was dropped from the New York lawsuit just before trial began Tuesday after agreeing to a $230 million settlement with New York prosecutors.

The other defendants facing allegations of false advertising, unfair competition practices and creating a public nuisance in Orange County include Teva Pharmaceuticals, and Endo Pharmaceuticals Inc. They are accused of deceptively marketing prescription opioids as rarely addicting.

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