WEBVTT - The Explosion of Opioid Lawsuits

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The nationwide opioid

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<v Speaker 1>epidemic was tied to about fifty thousand deaths in seventeen.

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<v Speaker 1>The devastation of opioid addiction is acknowledged almost uncontested. President

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<v Speaker 1>Trump focused on the crisis in a weekly address last April.

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<v Speaker 1>Opioid abuse and addiction can impact anyone, and everyone knows

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<v Speaker 1>someone who's been impacted. That's why we call it the

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<v Speaker 1>crisis next door. More than fift hundred lawsuits have been

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<v Speaker 1>filed against manufacturers and distributors of opioids by state attorneys, general, cities, counties, hospitals,

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<v Speaker 1>other groups and individuals. A judge in Cleveland, Ohio is

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<v Speaker 1>handling what's called a multidistrict little game ation, which has

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<v Speaker 1>become incredibly complicated, raising a number of novel legal questions.

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<v Speaker 1>Health care attorney Harry Nelson joins me now he's written

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<v Speaker 1>a new book entitled The United States of opioids a

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<v Speaker 1>prescription for liberating a nation in pain? Harry, how much

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<v Speaker 1>is Big Farmer responsible for the opioid crisis? Big Farms

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<v Speaker 1>certainly was a culprit here. What I like to say

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<v Speaker 1>is that they probably were the equivalent to the spark

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<v Speaker 1>that lit the fire. But at the same time, there

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<v Speaker 1>were multiple points of system failure that drove this crisis.

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<v Speaker 1>So it's certainly Big Farm ups deserves to pay a

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<v Speaker 1>price for having been so irresponsible and so aggressive in

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<v Speaker 1>marketing these drugs even as people were dying at horrific rates.

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<v Speaker 1>But at the same time, the reason that it happened

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<v Speaker 1>was in the backdrop was a whole set of failures

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<v Speaker 1>in our training of physicians, in our government regulation, in

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<v Speaker 1>our health insurance system, and we have to look at

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<v Speaker 1>those also as responsible pieces of the puzzle. So other

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<v Speaker 1>than Big Farm, of the other health care actors who

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<v Speaker 1>have come in for a lot of criticism have been physicians.

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<v Speaker 1>A lot of people have said physicians just were blindly

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<v Speaker 1>over prescribing, that we had pill mills all over the country,

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<v Speaker 1>and there were certainly physicians examples of physicians who were

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<v Speaker 1>floppy in their prescribing practices, but more broadly, there's been

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<v Speaker 1>a failure on the part of our medical training system

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<v Speaker 1>and our health system to really ensure that physicians are

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<v Speaker 1>trained on treating pain and addiction. It's really a problem

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<v Speaker 1>that goes back to the early twentieth century when when

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<v Speaker 1>the government first began to crack down on opium and

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<v Speaker 1>heroin use, we basically trained a whole generation of physicians

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<v Speaker 1>not to treat pain. It was a massive crackdown because

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<v Speaker 1>so many people were becoming addicted. And then it took

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<v Speaker 1>about seventy years, but we forgot that and the pendulum

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<v Speaker 1>swung back to you know, worrying about pain surveys and

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<v Speaker 1>making sure that patients weren't in pain, and now it

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<v Speaker 1>swung back again. So I think that we should look

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<v Speaker 1>at the issues around physicians really as in large part

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<v Speaker 1>a structural issue around training, and then also an issue

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<v Speaker 1>about how insurance companies drive decisions. Insurance companies and the

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<v Speaker 1>pressure for low cost care has translated to pills. Right.

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<v Speaker 1>There are lots of solutions. We have a pain crisis

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<v Speaker 1>in this country, fifty million Americans complaining about pain, but

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<v Speaker 1>the answer that the insurance industry wants is to give

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<v Speaker 1>people pills, not to talk about physical therapy and chiropractic

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<v Speaker 1>and the whole laundry list of personal services that take

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<v Speaker 1>professionals and time and cost more than just handing somebody

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<v Speaker 1>a pill. And finally, I think that we need to

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<v Speaker 1>look at the role of government. Right it was the

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<v Speaker 1>government that started calling pain the fifth vital Sign. It

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<v Speaker 1>was the Joint Commission, which is responsible for Medicare accreditation,

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<v Speaker 1>which really pushed this idea that we needed to respond

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<v Speaker 1>to patients pain, which is an absolutely legitimate idea. But

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<v Speaker 1>the problem is that when we survey patients and hospitals

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<v Speaker 1>and asked you know, how bad is your pain, people,

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<v Speaker 1>a positivity bias causes most people to to say eights

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<v Speaker 1>and nine, and that that was part of the problem.

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<v Speaker 1>And more broadly, you know, the d e A has

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<v Speaker 1>been an obstacle to research on alternatives. The d e

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<v Speaker 1>A was asleep at the wheel as sent and all

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<v Speaker 1>flooded into the country as physicians stopped prescribing, and we've

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<v Speaker 1>seen the FDA utterly failed to police marketing by farmers.

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<v Speaker 1>So there's lots of points of blame to go around

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<v Speaker 1>our health system and places where we need to fix

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<v Speaker 1>things to put an end to the causes of this crisis.

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<v Speaker 1>You put the d e A at the top of

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<v Speaker 1>the list of government agencies that failed the country in

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<v Speaker 1>the opioid crisis. Why at the top? Well for me

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<v Speaker 1>that there's three pieces to the d A that I

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<v Speaker 1>just think should be troubling to most people. Number one was,

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<v Speaker 1>as I said, you know that the da starts off

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<v Speaker 1>as a very aggressive force of cracking down on physicians,

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<v Speaker 1>and it's not clear to me why. You know, we

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<v Speaker 1>have as a country made it to vision and this

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<v Speaker 1>was Supreme Supreme Court decision that medical practice and prescribing

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<v Speaker 1>is really an oversight issue for the States to decide

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<v Speaker 1>when what a doctor needs to do to prescribe appropriately.

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<v Speaker 1>But the d A stepped in very aggressively and frankly

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<v Speaker 1>terrorized physicians. And it's the insertion of the d e

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<v Speaker 1>A into the oversight of medicine has left many many

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<v Speaker 1>doctors afraid to prescribe and really created a crisis for

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<v Speaker 1>people in chronic pain. Number Two, when the response to

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<v Speaker 1>the crackdown on physicians by the d A was with

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<v Speaker 1>black car heroine and sent and all flooding into the country. Uh,

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<v Speaker 1>the d A was it was mind boggling, but somehow

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<v Speaker 1>it took them about three years to recognize that China

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<v Speaker 1>and Mexico, we're just importing massive amount of low cost

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<v Speaker 1>sent and all that was killing people that we're looking

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<v Speaker 1>for the DA to do anything, it should have been

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<v Speaker 1>to police our borders and to stop stop this stuff

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<v Speaker 1>from coming in. But it literally was the cent and

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<v Speaker 1>al started coming in, and it literally was not until

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<v Speaker 1>seen that the d A even began to think about

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<v Speaker 1>how to stop it. As recently as last year, you

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<v Speaker 1>could do a search on bi fentanyl and find websites

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<v Speaker 1>from China advertising on Google and freely mailing in packets

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<v Speaker 1>of fentanyl. And finally, and this is my third point

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<v Speaker 1>that I think we really need to re examine what

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<v Speaker 1>the DA is doing, is that the DA has been

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<v Speaker 1>obstructing research on alternative pain therapeutics. So when you look

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<v Speaker 1>at what's happening around cannabis and other alternative therapies, uh,

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<v Speaker 1>the DA has been absolutely obstructive. I'm contacted constantly by

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<v Speaker 1>universities that have researchers who want to research alternative pain

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<v Speaker 1>therapeutics like cannabis, and they are blocked because they're federally funded.

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<v Speaker 1>If you want an example, a very recent example of

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<v Speaker 1>how how difficult the DA has been. There were repeated

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<v Speaker 1>efforts by the hemp industry to say, look, we have

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<v Speaker 1>a non cannabis source of CBD and other therapeutics that

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<v Speaker 1>potentially could solve the pain problem. And the d A

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<v Speaker 1>absolutely refused to bend uh and fought vigorously, and it

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<v Speaker 1>took Congress passing a new farm bill last month to

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<v Speaker 1>change the status of CBD and to say to the

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<v Speaker 1>d e A, we're rescheduling. So the d A, from

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<v Speaker 1>my perspective, has been at multiple points of this crisis,

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<v Speaker 1>you know, dragging its feet and trying to do everything

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<v Speaker 1>it can to pursue an agenda that's not in line

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<v Speaker 1>with fixing the opioid crisis. Let's turn to the law now,

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<v Speaker 1>how has the opioid crisis shaped American law? I think

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<v Speaker 1>you can draw a straight line from the staggering rise

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<v Speaker 1>in overdose deaths in the late nineteen nineties, which really

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<v Speaker 1>drew an unprecedented level of attention, to the fact that

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<v Speaker 1>something like twenty million Americans are living with various substance

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<v Speaker 1>use disorders. You can draw a straight line between the

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<v Speaker 1>opioid crisis and the decision in two thousand eight past

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<v Speaker 1>Mental Health Parity, which President Bush, George W. Bush signed

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<v Speaker 1>into law, which was the first time that we said

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<v Speaker 1>we're not going to allow health insurance to discriminate between

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<v Speaker 1>medical surgical care and substance use disorder and other mental

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<v Speaker 1>health care. And likewise, when you look at what the

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<v Speaker 1>Obama administration and Congress put together in crafting the Affordable

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<v Speaker 1>Care Act, it's unmistakable that the opioid crisis was in

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<v Speaker 1>people's thoughts in the making the decision to include substance

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<v Speaker 1>use disorder treatment for the very first time as one

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<v Speaker 1>of the ten essential health benefits. Even when you look

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<v Speaker 1>at the fight to dismantle the Affordable Care Act and

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<v Speaker 1>the Trump administration's efforts to repeal, what we saw was

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<v Speaker 1>that Republican senators flipped over and voted to block the

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<v Speaker 1>rollback of the Medicaid program through the Affordable Care Act,

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<v Speaker 1>specifically because of the importance, the critical importance of getting

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<v Speaker 1>more acts us to care for people across the country

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<v Speaker 1>through the Medicaid program to deal with the opioid crisis.

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<v Speaker 1>So there's been a whole series of changes in how

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<v Speaker 1>we approach addiction and basically bringing addiction treatment into the

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<v Speaker 1>fold of healthcare, which it wasn't twenty years ago, and

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<v Speaker 1>I think that's directly attributable to the opioid crisis. There's

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<v Speaker 1>there's lots of other smaller examples, but that's the big one.

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<v Speaker 1>At the beginning I mentioned the multi district litigation. Which

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<v Speaker 1>side has the advantage in those lawsuits, the plaintiffs or

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<v Speaker 1>big pharma, as we saw with big Tobacco litigation not

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<v Speaker 1>too long ago and the NFL the concussion litigation. When

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<v Speaker 1>you have these mass torque class actions that hit on

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<v Speaker 1>core societal issues, big pharma has a problem. For many,

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<v Speaker 1>many years, companies like Produe Pharma were successful at settling

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<v Speaker 1>cases and avoiding discovery right avoiding depositions of drug any

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<v Speaker 1>executives and doctors, and calling attention to it. But the

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<v Speaker 1>bottom line is this case is a ticking time bomb

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<v Speaker 1>for big pharma and it's almost in inevitability that this

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<v Speaker 1>case will have to be settled. We're right now kind

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<v Speaker 1>of in the early stages of discovery in the multi

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<v Speaker 1>district litigation, where there are tens of millions of documents

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<v Speaker 1>filtering in through these you know, digital rooms, which are

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<v Speaker 1>going to take a long time to go through, and

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<v Speaker 1>it's likely that we're gonna have some depositions, probably another

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<v Speaker 1>year before we're on the horizon for a settlement. But

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<v Speaker 1>I think it's inevitable that Big Farmer will have no

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<v Speaker 1>choice but to but to settle this case. So there's

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<v Speaker 1>no possible wave. We would literally see one pharmaceutical company

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<v Speaker 1>after another go out of business. It's hard to imagine

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<v Speaker 1>how they couldn't find a jury that there could be

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<v Speaker 1>a journey in the United States that would not be

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<v Speaker 1>inclined to find them responsible. Thanks for being on Bloomberg Law. Harry.

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<v Speaker 1>That's Harry Nelson. His new book is called The United

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<v Speaker 1>States of Opioids, A Prescription for Liberating a Nation in Pain.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg