Families destroyed by prescription opioids worry stigma may keep them from getting justice

Opioid Crisis Blood Money

Lynn Wencus of Wrentham, Massachusetts, holds a sign with a picture of her son, Jeff, and wears a sign of others’ loved ones lost to OxyContin and other opioids during a protest at Purdue Pharma LLP headquarters in Stamford, Connecticut, in 2018.

Soon after getting an OxyContin prescription for back pain and arthritis in 1999, disabled coal miner James Craig started popping three of the narcotic pills daily, instead of the prescribed two, he said in a deposition as part of a lawsuit against the drug’s manufacturer, Purdue Pharma. Within months, he said in the deposition, he was swallowing and crushing and snorting up to seven a day to satisfy his craving.

When doctors stopped prescribing OxyContin, he said, he started buying the narcotic pain medication illegally.

“I didn’t realize what they’d do to you until it was too late,’’ Craig said in an interview from his home in rural Pathfork, Kentucky, an Appalachian Mountain town near the Cumberland Gap. “Within a couple of months, you don’t want to admit it, but one [pill] won’t do, and you’re running around the streets trying to buy one.’’

In a lawsuit, Craig claimed Purdue Pharma was responsible for his addiction, subsequent pain and suffering, and financial losses. The claim said Purdue Pharma failed to warn him and other plaintiffs about the addictive nature of the drug. But a U.S. district court judge disagreed in 2003. In dismissing a case brought by Craig, now 72, and other plaintiffs, including families of two who died of overdoses, the judge cited their illegal behavior and said the court would “not accept the plaintiffs’ ‘victimization’ mentality.’’

Fast-forward 16 years.

More than 400,000 people have died in the national opioid epidemic, which was spawned by prescription opioids and expanded to the illegal use of heroin and fentanyl.

Purdue Pharma has filed for bankruptcy protection from more than 2,700 lawsuits brought by state and local governments, insurance companies and hospitals, claiming it deceptively marketed its prescription opioids. The company is in settlement talks, as are generic drug manufacturers and large distributors and drugstore operators.

But even as government lawsuits have spurred the potential for sweeping national settlements, the continuing stigma of addiction and criminal activity remains a barrier to damage awards for the individual people who suffered the most, according to alleged victims, plaintiff lawyers and legal specialists. The one exception might be babies whose mothers were addicted during pregnancy.

Prescription opioid abusers often are perceived to share the blame for the serious harm they experienced through addiction to prescription pills, recovering users contend. Unlike those injured by asbestos, medical implants or faulty automobile bags, courts have been reluctant to accept their claim that their addiction was the result of a dangerous, improperly marketed product.

Because it was the first company to aggressively market a new form of potent opioid product with its introduction of OxyContin in 1996, according to legal experts, Purdue Pharma was the biggest target of personal injury lawsuits as the opioid epidemic took hold in the early 2000s.

In its defense in that first wave of litigation, the company asserted in courts across the country that it should not be held liable for abusers’ misuse of OxyContin and other actions, which may have been illegal.

The cause of any injury “was the plaintiff’s choice to use, misuse, or abuse OxyContin in a manner other than that recommended’’ and “the plaintiff’s own conduct,’’ the company said in a 2004 Illinois case in federal court.

The Washington Post reviewed court filings by Purdue Pharma in U.S. District Court in Kentucky, West Virginia and Texas and found virtually identical arguments.

Purdue Pharma’s broad legal strategy echoed a position stated in an email by Richard Sackler, the former president and chairman of the family-owned company, in 2001.

“We have to hammer on the abusers in every way possible. They are the culprits and the problem. They are reckless criminals,” Sackler wrote in the email, which was cited in a January lawsuit against Purdue Pharma and the family by Massachusetts Attorney General Maura Healey.

A representative for Richard Sackler earlier this year, in a written response to the release of the email, said, “Purdue neither developed nor implemented any such strategy. ... Like many people, Dr. Sackler has since learned a lot more about addiction, and has apologized for his insensitive language of decades past.’’

Purdue and other companies being sued — including the large distributors McKesson, AmerisourceBergen and Cardinal Health, as well as generic manufacturers Teva and Mallinckrodt — have continued to rely on a defense that prescription opioids were illicitly misused. The defenses say the companies should not be held liable for such behavior and that the governments’ cases should be dismissed.

“Purdue is deeply concerned about the impact of the opioid crisis on individual victims and their families,’’ the company said in an emailed statement. But it did not directly support compensation awards for victims in its statement.

“All claimants, including individual victims, will have the opportunity to submit their claims through the bankruptcy process,’’ the company said.

Abbott Laboratories adopted the same legal strategy as Purdue Pharma, according to a review of its court filings. The company was also targeted in early lawsuits because it co-marketed OxyContin under an agreement with Purdue Pharma in the painkiller’s first years on the market. Abbott declined to comment.

Now that governments have taken over the role of lead plaintiffs in the wave of lawsuits, opioid abusers and families of overdose victims have had little to no role in the talks with Purdue Pharma and other opioid manufacturers and distributors talks. It remains unclear when or how — or even if — individuals and their families would be compensated from the settlement proceeds.

“People have this notion that we did this to ourselves — that we made these bad choices, that it’s a moral failing not a disease,’’ said recovering opioid addict Garrett Hade, who said in bankruptcy court documents that he was prescribed OxyContin at 18 to treat injuries sustained while skateboarding. “Those are the types of stigmas that are attached to this. That holds sway.”

The largest Purdue Pharma settlement with a state thus far, in Oklahoma, steered nearly $200 million to the University of Oklahoma to establish a research and addiction-treatment program. Another $12 million went to local governments and $60 million for legal expenses.

None of the settlement money was earmarked directly for victim compensation. In advance of the $85 million settlement with Teva, a generic opioid manufacturer, the Oklahoma legislature created a special fund for the money to address the opioid epidemic.

Victim-compensation funds also have not yet been floated as part of the national-level settlements being negotiated by governments and manufacturers. The most tangible benefit for victims so far has been proposals for free anti-addiction and overdose-rescue drugs to individual communities.

“There is no justice in what is happening,’’ said Hade, who has signed up as a plaintiff creditor in Purdue Pharma’s bankruptcy proceeding. “I have no confidence, even if they settle with the states and the municipalities, that the money will go to the right places.’’

Hade and other alleged victims will be mounting a fight during Purdue’s bankruptcy to win direct financial compensation. Lawyers are signing up to represent victims in the bankruptcy who will attempt to show they were injured by OxyContin.

“The victims themselves didn’t realize they were victimized. They thought of themselves as drug addicts, they thought of their parents or their kids as drug addicts,’’ said Edward Neiger, a lawyer with the firm ASK representing Hade and other individuals with financial claims based on OxyContin injuries.

“They did not realize,’’ he said, “that they were addicted to opioids because there were people in a boardroom conspiring to market these drugs to them and to lie about the potential harm these drugs would cause.’’

In a court filing, Neiger has asserted a $2.5 million claim each for Hade and five others alleging personal injuries from OxyContin. For two people who lost children to overdoses, he has presented a claim for $5 million each alleging wrongful death.

Purdue Pharma has not responded to those creditor claims. The company has denied that it caused harm to victims and said it marketed its drugs responsibly and according to Food and Drug Administration guidelines. It did not admit wrongdoing as part of the Oklahoma settlement and would not make any such admission in the proposed bankruptcy settlement with other states and local governments.

In the proposed bankruptcy settlement supported by nearly half of the states, the Sackler family, which owns the company, has agreed to pay at least $3 billion over seven years, mostly from the sale of overseas pharmaceutical affiliates. Purdue Pharma’s assets also would go into the pot of cash, including more than $1 billion in cash on hand when it filed for bankruptcy in September.

Twenty-five states and the District of Columbia oppose the bankruptcy settlement. They contend the Sackler family should contribute more.

But supporters of the deal say the settlement is the quickest way to get relief to states and communities — as well as victims. Another category of victim, babies born to opioid-addicted mothers and now suffering from neonatal abstinence syndrome, is also being represented in the bankruptcy case.

“By creating the billions of dollars for recovery, you create the best opportunity for everybody to participate,’’ said a lawyer involved in the bankruptcy, who spoke on the condition of anonymity to discuss matters being negotiated. “We’re going to have to come up with a trust structure that makes sense, that’s going to provide for the participation of individual claims.’’

A proposal to accelerate $200 million of the settlement for an “emergency fund’’ to steer money to local community organizations that treat addiction and provide services to recovering addicts and families has been endorsed by some parties to the bankruptcy and Purdue Pharma. Details have yet to emerge, and it remains unclear how many creditors will support it.

“Purdue fully supports establishing an emergency fund that would put money to work addressing the opioid crisis before a final plan is confirmed,’’ the company said in its statement.

Outside the Purdue Pharma bankruptcy, the governments have been attempting to reach a settlement deal with other opioid-industry defendants, including manufacturers Johnson & Johnson and Teva, and distributors McKesson, Cardinal Health and AmerisourceBergen. The most recent effort to reach a settlement, which fell short for lack of support, would have been worth an estimated $48 billion, $22 billion in cash and $28 billion in treatment drugs. The negotiations were private but there were no public indications that direct compensation for victims was part of the proposal.

Even that vast sum would not match the costs to communities and the health care system. A recent estimate said U.S. costs of the epidemic have reached more than $150 billion a year.

The Kentucky lawsuit brought by Craig and others was one of hundreds of product liability cases against Purdue Pharma that were thrown out of court or withdrawn during the first 10 years OxyContin was on the market. Until it settled more than 1,000 individual plaintiff cases in 2007 and pleaded guilty to federal charges that it deceptively marketed OxyContin, Purdue Pharma touted its early track record of court victories.

“The courts just didn’t seem sympathetic at that time, between 2000 and 2012,’’ said Richard Ausness, a professor of law at the University of Kentucky. “It was a little reminiscent of the tobacco situation. Courts and juries, when they went to trial, said you have only yourself to blame.’’

But in the tobacco cases, he added, public sentiment changed in favor of lung-cancer patients once information emerged about how tobacco companies concealed the dangers of smoking. Information that has emerged in recent years about the marketing practices of Purdue Pharma and other manufacturers may have a similar effect, Ausness said.

Still, the big money for lawyers suing companies will continue to be found representing states, he said.

“The individual plaintiffs sort of feel left out, because it’s a sum zero game. There’s only so much money out there, and if the state and local governments get it all through a settlement,’’ he said, “there’s not going to be much left for the other plaintiffs.’’

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Funerals for Saturday, December 7, 2019

Blackshire, Judith - 11 a.m., Sunset Memorial Park, Charleston.

Breckenridge, Robert - 2 p.m., Emmanuel Tabernacle Baptist Church, Page Hill.

Butler, Larry - Noon, Stump Funeral Home & Cremation Inc., Grantsville.

Byers, David - 6 p.m., Chapman Funeral Home, Hurricane.

Cincinnati, Freda -11:30 a.m., Immaculate Conception Catholic Church, Montgomery.

Colby III, Ronald - 11 a.m., Alban Arts Center, St. Albans.

Fetty, Julia - 2:30 p.m., Waybright Funeral Home, Ripley.

Findley, Reva - 3 p.m., Chapman Funeral Home, Hurricane,

Fletcher, Christopher - Noon, First Baptist Church, St. Albans.

Griffith, Martha - 1 p.m., Forks of Coal Baptist Church Cemetery, Alum Creek.

Harris, Mark - Noon, Simpson Memorial United Methodist Church, Charleston.

Harris, Roy - 1 p.m., Taylor-Vandale Funeral Home, Spencer.

Hinkle, Virginia - 5 p.m., Cooke Funeral Home Chapel, Cedar Grove.

Holland, William - 4 p.m., Dunbar First Church of God, Dunbar.

James, Susan - 1 p.m., Waybright Funeral Home, Ripley.

Lokant, Raymond - 1 p.m., Tyree Funeral Home Chapel, Oak Hill.

Moores, Patricia - 11:30 a.m., Pineview Cemetery, Orgas.

Morrison, William - Noon, Stockert-Paletti Funeral Home, Flatwoods.

Porterfield, Keven - 3 p.m., Old Faith Community Church, Sissonville.

Settle, Donald - 7 p.m., Keller Funeral Home, Dunbar.

Starcher, James - 1 p.m., Roach Funeral Home, Gassaway.

Stevens, Olyn - 1 p.m., Elk Funeral Home, Charleston.

Summers, Rosalie - 11 a.m., St. George Orthodox Cathedral, Charleston.

Taylor, Edward - 10 a.m., Sacred Heart Catholic Church, Charleston.

Vance, Brian - 10 a.m., Grace Covenant Presbyterian Church, Charleston.