Front Burner - What a landmark ruling means for the opioid crisis

Episode Date: August 29, 2019

This week, Johnson & Johnson was ordered to pay $572 million US to the state of Oklahoma, in a landmark case that saw the court find the company liable for the state's opioid crisis. Johnson & Johnson says it will appeal the ruling. Purdue Pharma is also proposing to settle thousands of cases. These developments are the beginning of a far-reaching legal effort, in both the U.S and Canada, to hold drug makers accountable for the opioid epidemic. Today on Front Burner, we talk to journalist Zachary Siegel about what this ruling might mean for the thousands of cases soon to be before the courts.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. I feel like my boy's looking down. It's a pretty tough deal. But I think my son and Austin are celebrating today.

And we've got to get help to these other kids. So I'm very grateful for the court for what he did. And it depends on what, you know, these other companies do now. That was Oklahoma State Attorney Reggie Whitten standing outside a Cleveland County courtroom on Tuesday. He was reacting to a landmark ruling in a case he helped fight against drug manufacturer Johnson & Johnson. And the fight was personal.

Reggie Whitten lost his son to the opioid epidemic. Johnson & Johnson is one of more than 2,000 lawsuits pending against opioid manufacturers across the United States. Here in Canada, British Columbia has filed a similar suit. There was lots happening on this front this week, including the fact that one of those manufacturers, Purdue Pharma, run by easily the most influential pharmaceutical family in the world, announced they were looking to settle thousands of these same lawsuits for as much as $12 billion. Today, I'm talking to journalist Zachary Siegel about all of this and whether he thinks it's good enough. I'm Jamie Poisson. This is Frontburner.

Zach, thank you so much for coming back on the podcast. You're super welcome. Thanks for having me on. Can we start with the lawsuit out of Oklahoma on Monday? So a judge ruled that Johnson & Johnson was essentially complicit in the opioid crisis. The company was ordered to pay the state $572 million in settlement. Defendants caused an opioid crisis that is evidenced by increased rates of addiction, overdose deaths. Johnson & Johnson says they're now appealing this decision. Johnson & Johnson did not cause the opioid abuse crisis here in Oklahoma or anywhere in this country.

But what did the judge find in this case? What are the big takeaways for you? This Oklahoma case is actually quite strange because Oklahoma has a very broad public nuisance law. And so the public nuisance here is that Johnson & Johnson's opioid products and their marketing and their advertising cause this wave of overdoses. I'm entering an abatement plan that consists of costs totaling $572,102,028 to immediately, but hep C, HIV. And so all these issues stemming from addiction have been sort of, in this case, linked to the activities of the company. Lawyers for the state arguing its sales force downplayed their painkillers' addictive qualities. Oklahoma Attorney General Mike Hunter heralded the judge's ruling this afternoon. The company promoted his products

through unbranded campaigns by funding front groups and many patient groups meant to look like grassroots organizations that spread the company's misinformation. And can you unpack for me a bit more Johnson & Johnson's role in the opioid crisis? So I think for a lot of people when they think opioid crisis, they might think Purdue Pharma, right? But Johnson & Johnson is a company that a lot of people might know for making baby shampoo. Right. What was interesting about Johnson & Johnson is that they own two subsidiaries that actually grow poppy. And they source these raw ingredients of opioids, which is the sap from the poppy plant that we extract morphine from, and it produces opioids. So they were serving the raw ingredients to make opioids to other companies.

The government, the state in Oklahoma, sort of used this poppy growing activity to call Johnson & Johnson a kingpin in the industry. So we're seeing this intersection of the old school kind of drug warrior language calling cartels kingpins. We're seeing that being transposed onto pharmaceutical companies now. You can't sit in a corporate suite somewhere for the last 20 years and oversupply the country. There's no question in my mind that these companies knew what was going on at the highest level. They just couldn't quit making money from it. And that's why they're responsible. Can we talk about that for a second? So $572 million, Johnson & Johnson has been ordered to pay this. This is a fraction of what

they were actually asking for. They were asking for $17 billion. You know, first of all, does that feel like enough money for you? And then second of all, who gets this money? Yeah, so the first point, no. Basically, Johnson & Johnson in 2018, they raked in $81.6 billion. And if we're thinking about them cutting a check for $570 million, that doesn't dent their revenue. And when we think about what the justice system does, what we think, putting people in jail or fining companies heavily, it's supposed to be a deterrent to sort of signal to other players like, hey, we're not messing around. If you skirt the regulations, if you break the law, you will face the consequences. And I don't think Johnson & Johnson monetarily, financially, like really feels any consequences paying $570 million.

We actually saw Johnson & Johnson's share price rise in after hours trading after this ruling came through, firstly spiking by more than 4%, but finishing those extended trading hours up over 2%. I should note when we're talking about this case in Oklahoma here, the Oklahoma state attorney also launched lawsuits against some of these other companies you've been talking about. Purdue is one of them. Teva is another one. And they chose to settle with Oklahoma for a combined $350 million earlier this year. Right. So Purdue settled for $270 million and Teva Pharmaceuticals settled for 85 million.

And Johnson & Johnson decided to fight. They really didn't think that their activities were part of the problem. Sabrina Strong, she's one of our trial attorneys. The facts are that the company manufactured two FDA-approved medicines that are essential for treating patients who suffer from chronic, long-term, debilitating pain. I want to get into more of these lawsuits in a moment with you. But first, I know that part of the significance of this case being based in Oklahoma is because it is a state that has been ravaged by opioids in many ways. And can you explain to me what the crisis has looked like for the people there? I just saw a study that opioids stole approximately 250,000 years of life expectancy in Oklahoma. Wow. So that is like shocking that so many people in this state died at the prime of their lives. These weren't necessarily 70 and 80 and 90 year olds dying. It was 40 year olds

and 50 year olds and even younger, 20 year olds, 30 year olds, people with a lot of life ahead of them. And it just vanishes with an overdose so fast. When the call came on that early morning, I had no idea of what words I would hear, and I was totally unprepared. I remember falling to the floor in anguish, crying out to God that this could not be real. Our firstborn boy. I always thought that doctors were there to save life. And I think it's very sad to think about what happened in Oklahoma, because there is an aging population there. A lot of manual laborers who, for most of their lives, have done heavy labor, a lot of construction, a lot of building.

There's a lot of oil companies out there. And these people gave their lives to a lot of companies and broke their bodies in the process. And at some point, probably had legit chronic pain. And when they got an opioid prescription, or when someone they knew got an opioid prescription and they tried it, or when someone they knew got an opioid prescription and they tried it, maybe they understood that these opioids are actually not just relieving physical pain, but trauma and emotional pain. And I think that's what is so important to keep in mind about opioids, is that they don't just relieve physical pain. They do a very good job of relieving all kinds of pain, be it emotional or mental. And I know we heard from a lot of families during the trial, there were some really

heart-wrenching testimonies, including, you know, at the top of the show, we talked about the state's attorney mentioning a man named Austin. This is a former football player, Austin Box. Three months before his senior season at OU, a 911 call that changed everything. There's a guy who stayed with me last night. He takes pain pills and he's not responding to me. His dad testified at the trial. That was really, really incredibly heart-wrenching. I can't explain what happens to you as a parent when a child dies.

In the aftermath of his death, I mean, there was quite a bit of publicity. We heard from so many parents across that have lost children in similar circumstances that the same story as us had no idea, had no clue about the prevalence of these drugs and the dangers of these drugs. The number that I saw, which is really striking, is 18 million opioid prescriptions written between 2015 and 2018 in a state with a population of 4 million people. Yeah, I mean, when we have that many more pills than we do people, that should raise some eyebrows, which I think really does get back

to this indictment of the system itself. I hope that what these lawsuits do is spark a long overdue conversation about the pharmaceutical industry and how we regulate it and how we ensure that laws and regulations are putting people over profit. I think right now we have a system that is way too deferent to corporate power, and people and the health and safety of the public is sort of an afterthought. Nobody's strong enough to overcome something like that on their own.

You think you are, and you get sick, and you feel feel bad and you're going to pop another handful of pills just like I did, just like everybody else will. And everybody thinks it's okay because you get a script from the doctor from it. You know, you can get it from the doctor, it's okay. The doctor says I can take it. Yeah, well, people are dying. I understand this case in Oklahoma is really significant because it's the first company that has actually gone to court and fought this out. So this is the first judgment. And it's also seen as a precursor for a much larger legal effort this fall, when more than 2,000 cases from around the U.S. will be consolidated in this Ohio court.

And so can you tell me more about this? Yes. Right now, there are over 2,000 lawsuits against basically every player in the pharmaceutical industry. And Purdue, of course, is a big one, Walgreens, Pharmacy, CVS, Johnson & Johnson. All these companies and all these lawsuits have been consolidated into one big multi-district litigation suit in Ohio. And so this judgment in Oklahoma was being watched very closely by the plaintiff's attorneys that plan to argue the case in Ohio. That trial begins in October, barring any settlement. So unless there's some big master settlement that happens soon, then these lawsuits will begin to go to trial in October. I'm not entirely positive on the details of this and correct me if I'm wrong, but there was news this week that Purdue Pharma might be negotiating a settlement as part of this consolidated case.

It could be as much as $12 billion, including $3 million from the Sackler family, I believe. They're the family behind Purdue. And they would have to hand the company over. That would mean the profits from all drug sales, including opioids, would go to the states and possibly communities that are suing Purdue for its role in the opioid crisis. So the Sackler family is notorious at this point, and they've been the target of a lot of activism. And their family name is on the wings in the Guggenheim, and there's medical schools named after them. They have been, depending on how you see it, laundering their reputation through massive philanthropies for many, many years. through massive philanthropies for many, many years.

Shame on Sackler! Shame on Sackler! Protests like that one may be paying off. The Guggenheim says it won't take any more Sackler money. And London's National Portrait Gallery turned down a big donation as well. And to see this family be willing to hand the keys over to their company and file Chapter 11, like basically stop playing the game. I think that's significant. I realize that we live in different countries and we don't have the same legal system. But just to note, there were people on this side of the border who were watching this case in Oklahoma and who are watching this consolidated lawsuit as well.

The province of British Columbia has filed a similar suit against dozens of pharma companies, including Johnson & Johnson and Purdue. And the attorney general of that province, David Evey, he says that he's pretty pleased with the ruling this week. Like this sets a good precedent. This decision is based on very similar facts that are argued by British Columbia and our litigation. To have a judge say, yes, we do see that there's a serious problem here with how this company conducted themselves and we do feel that they do need to be paying money out because of the way they marketed these very addictive and harmful drugs is a very positive sign for our litigation here in Canada.

Canada, as we've discussed before, is also in the midst of the most deadly drug crisis it's ever faced. And if companies are responsible here in America, it stands to reason that they're also responsible in Canada. I know you've written about how this fight to hold Big Pharma accountable sort of mirrors the fight against big tobacco. And what similarities do you see here? So back in the 90s, five major tobacco companies were in a very similar position that the opioid companies are in right now. So they were facing this onslaught of lawsuits from just about every state in the country. I think a total of 46 states and many towns and cities and different levels of government filed lawsuits against Big Tobacco. And they were also consolidated in this massive case. And what it did was force

Big Tobacco to come to the table and hash out a settlement so that there wouldn't be, you know, five years of litigation and appeals and this long process. And so that wound up in a $246 billion settlement that is still being paid out to this day. Attorney General Chris Gregoire. The settlement will curb the industry's advertising and marketing machine, fund a $1.5 billion anti-smoking campaign over five years, open secret industry documents, and shut down industry trade groups, which we believe conspired to hide the truth about the health effects of tobacco. And so if we're thinking about this big multi-district litigation in Ohio, there's definitely echoes of that big tobacco case. Are there any lessons that can be learned, though? Yes, definitely in terms of how the big tobacco money has been earmarked and spent, I think offers a lot of lessons for how to not structure the deal of a potential opioid settlement.

I don't think a lot of Americans realize that big tobacco is still paying out billions of dollars every year to the states from this settlement back in the 90s. And so I think people would be shocked to learn, for example, that big tobacco settlement money in, let's say, New York, $700,000 of that went to buy sprinklers and golf carts for a public golf course. What? So, yeah, this money has very little oversight. It's supposed to be spent on smoking prevention, on public health, on treating cancer, on insuring young children. That money, like that spirit of the settlement has been totally broken.

So that money basically has just been rained down in state legislators who control the purse, and they've basically been spending that money however they want. And so if we're thinking about this $572 million that may be going to Oklahoma, I'm wondering, well, okay, where's that going to go? Right now, we have no idea how this money is going to be spent. Over 100 people in America are going to die from an overdose today. People need help right now. Those are the stakes that I keep in mind. I know this is something you've touched on a few times during this conversation, but just to ask it to you straight, we're talking about what seems like big pots of money here, a potential $12 billion settlement with many states, a $572 million judgment in Oklahoma.

Although you did mention earlier in this conversation that a lot of these companies are making billions and billions and billions of dollars in profit. And of course, we're talking about more than 100 people a day losing their lives to this crisis. Does this look like justice to you? Yeah, that's a really good question. And I really don't know what justice looks like here. As someone who has interviewed so many families who have lost loved ones, as someone who has personally lost many, many friends to overdoses. As someone who really follows every day the sort of devastation that overdose and addiction is causing right now, I don't know what would make things right. All I do know is that there are ways that we know can benefit and make a healthier and happier and safer society,

that there are ways we can do that. My question is, how can we get there? What's going to be the push to structurally reduce the demand for these potent and deadly drugs? If you sort of had the reins of power here, what would you like to see happen? drugs. If you sort of had the reins of power here, what would you like to see happen? I mean, luckily, I've talked to a lot of doctors and attorneys who I've put that question to, because I don't like to be super prescriptive here, but talking to them and articulating what they want to see, they have told me that we really need to build a better health care infrastructure in this country. So rural hospitals, for example, they've been closing at a rapid clip and they're going out of business.

The plug pulled on yet another Tennessee hospital. The area's only hospital is shutting down. Several hospitals are closing. The population in some of those towns has dwindled to a size that can't support a hospital anymore. In others, the hospitals are either mismanaged or they end up as table scraps and mega-mergers. If this money could rebuild those hospitals, you know, that could save many, many lives. a more robust treatment system. For so long, mental health and behavioral health have been siloed out of the sort of mainstream of medical care. So if I have cancer, I can go to a cancer hospital and get the best treatment and things are scientific and they care for you and there's

support. If I have addiction, I don't really have that option. There's so much demand for treatment and there's just not enough quality treatment out there. So if this money could go to build a quality science-based treatment system, I mean, I just think that could go a long way to getting at the root of some of the problems here. Thank you so much for being with us today. It's always really enlightening to get the chance to talk to you. Zach Siegel. Thanks, Jamie. Appreciate it. All right, so now for an update on a story that we told you about last week. Corporal Patrick Matthews has gone missing.

He's a Canadian Army reservist trained in the use of explosives, and he was alleged to have connections with a major neo-Nazi organization. The organization is called The Base, and they recruit around the world. We did a whole neo-Nazi organization. The organization is called The Base and they recruit around the world. We did a whole episode about this last week. You can find it in our feed. The RCMP has made it clear that this is a missing persons investigation and that there are no charges against Matthews. Earlier this week, the Canadian Armed Forces confirmed that he will not be returning to work. That's all for today. I'm Jamie Poisson. Chris Berube is filling in for me tomorrow.

Thanks for listening to FrontBurner and see you on Monday. For more CBC Podcasts, go to cbc.ca slash podcasts.