Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. The nationwide opioid
Speaker 1: epidemic was tied to about fifty thousand deaths in seventeen.
Speaker 1: The devastation of opioid addiction is acknowledged almost uncontested. President
Speaker 1: Trump focused on the crisis in a weekly address last April.
Speaker 1: Opioid abuse and addiction can impact anyone, and everyone knows
Speaker 1: someone who's been impacted. That's why we call it the
Speaker 1: crisis next door. More than fift hundred lawsuits have been
Speaker 1: filed against manufacturers and distributors of opioids by state attorneys, general, cities, counties, hospitals,
Speaker 1: other groups and individuals. A judge in Cleveland, Ohio is
Speaker 1: handling what's called a multidistrict little game ation, which has
Speaker 1: become incredibly complicated, raising a number of novel legal questions.
Speaker 1: Health care attorney Harry Nelson joins me now he's written
Speaker 1: a new book entitled The United States of opioids a
Speaker 1: prescription for liberating a nation in pain? Harry, how much
Speaker 1: is Big Farmer responsible for the opioid crisis? Big Farms
Speaker 1: certainly was a culprit here. What I like to say
Speaker 1: is that they probably were the equivalent to the spark
Speaker 1: that lit the fire. But at the same time, there
Speaker 1: were multiple points of system failure that drove this crisis.
Speaker 1: So it's certainly Big Farm ups deserves to pay a
Speaker 1: price for having been so irresponsible and so aggressive in
Speaker 1: marketing these drugs even as people were dying at horrific rates.
Speaker 1: But at the same time, the reason that it happened
Speaker 1: was in the backdrop was a whole set of failures
Speaker 1: in our training of physicians, in our government regulation, in
Speaker 1: our health insurance system, and we have to look at
Speaker 1: those also as responsible pieces of the puzzle. So other
Speaker 1: than Big Farm, of the other health care actors who
Speaker 1: have come in for a lot of criticism have been physicians.
Speaker 1: A lot of people have said physicians just were blindly
Speaker 1: over prescribing, that we had pill mills all over the country,
Speaker 1: and there were certainly physicians examples of physicians who were
Speaker 1: floppy in their prescribing practices, but more broadly, there's been
Speaker 1: a failure on the part of our medical training system
Speaker 1: and our health system to really ensure that physicians are
Speaker 1: trained on treating pain and addiction. It's really a problem
Speaker 1: that goes back to the early twentieth century when when
Speaker 1: the government first began to crack down on opium and
Speaker 1: heroin use, we basically trained a whole generation of physicians
Speaker 1: not to treat pain. It was a massive crackdown because
Speaker 1: so many people were becoming addicted. And then it took
Speaker 1: about seventy years, but we forgot that and the pendulum
Speaker 1: swung back to you know, worrying about pain surveys and
Speaker 1: making sure that patients weren't in pain, and now it
Speaker 1: swung back again. So I think that we should look
Speaker 1: at the issues around physicians really as in large part
Speaker 1: a structural issue around training, and then also an issue
Speaker 1: about how insurance companies drive decisions. Insurance companies and the
Speaker 1: pressure for low cost care has translated to pills. Right.
Speaker 1: There are lots of solutions. We have a pain crisis
Speaker 1: in this country, fifty million Americans complaining about pain, but
Speaker 1: the answer that the insurance industry wants is to give
Speaker 1: people pills, not to talk about physical therapy and chiropractic
Speaker 1: and the whole laundry list of personal services that take
Speaker 1: professionals and time and cost more than just handing somebody
Speaker 1: a pill. And finally, I think that we need to
Speaker 1: look at the role of government. Right it was the
Speaker 1: government that started calling pain the fifth vital Sign. It
Speaker 1: was the Joint Commission, which is responsible for Medicare accreditation,
Speaker 1: which really pushed this idea that we needed to respond
Speaker 1: to patients pain, which is an absolutely legitimate idea. But
Speaker 1: the problem is that when we survey patients and hospitals
Speaker 1: and asked you know, how bad is your pain, people,
Speaker 1: a positivity bias causes most people to to say eights
Speaker 1: and nine, and that that was part of the problem.
Speaker 1: And more broadly, you know, the d e A has
Speaker 1: been an obstacle to research on alternatives. The d e
Speaker 1: A was asleep at the wheel as sent and all
Speaker 1: flooded into the country as physicians stopped prescribing, and we've
Speaker 1: seen the FDA utterly failed to police marketing by farmers.
Speaker 1: So there's lots of points of blame to go around
Speaker 1: our health system and places where we need to fix
Speaker 1: things to put an end to the causes of this crisis.
Speaker 1: You put the d e A at the top of
Speaker 1: the list of government agencies that failed the country in
Speaker 1: the opioid crisis. Why at the top? Well for me
Speaker 1: that there's three pieces to the d A that I
Speaker 1: just think should be troubling to most people. Number one was,
Speaker 1: as I said, you know that the da starts off
Speaker 1: as a very aggressive force of cracking down on physicians,
Speaker 1: and it's not clear to me why. You know, we
Speaker 1: have as a country made it to vision and this
Speaker 1: was Supreme Supreme Court decision that medical practice and prescribing
Speaker 1: is really an oversight issue for the States to decide
Speaker 1: when what a doctor needs to do to prescribe appropriately.
Speaker 1: But the d A stepped in very aggressively and frankly
Speaker 1: terrorized physicians. And it's the insertion of the d e
Speaker 1: A into the oversight of medicine has left many many
Speaker 1: doctors afraid to prescribe and really created a crisis for
Speaker 1: people in chronic pain. Number Two, when the response to
Speaker 1: the crackdown on physicians by the d A was with
Speaker 1: black car heroine and sent and all flooding into the country. Uh,
Speaker 1: the d A was it was mind boggling, but somehow
Speaker 1: it took them about three years to recognize that China
Speaker 1: and Mexico, we're just importing massive amount of low cost
Speaker 1: sent and all that was killing people that we're looking
Speaker 1: for the DA to do anything, it should have been
Speaker 1: to police our borders and to stop stop this stuff
Speaker 1: from coming in. But it literally was the cent and
Speaker 1: al started coming in, and it literally was not until
Speaker 1: seen that the d A even began to think about
Speaker 1: how to stop it. As recently as last year, you
Speaker 1: could do a search on bi fentanyl and find websites
Speaker 1: from China advertising on Google and freely mailing in packets
Speaker 1: of fentanyl. And finally, and this is my third point
Speaker 1: that I think we really need to re examine what
Speaker 1: the DA is doing, is that the DA has been
Speaker 1: obstructing research on alternative pain therapeutics. So when you look
Speaker 1: at what's happening around cannabis and other alternative therapies, uh,
Speaker 1: the DA has been absolutely obstructive. I'm contacted constantly by
Speaker 1: universities that have researchers who want to research alternative pain
Speaker 1: therapeutics like cannabis, and they are blocked because they're federally funded.
Speaker 1: If you want an example, a very recent example of
Speaker 1: how how difficult the DA has been. There were repeated
Speaker 1: efforts by the hemp industry to say, look, we have
Speaker 1: a non cannabis source of CBD and other therapeutics that
Speaker 1: potentially could solve the pain problem. And the d A
Speaker 1: absolutely refused to bend uh and fought vigorously, and it
Speaker 1: took Congress passing a new farm bill last month to
Speaker 1: change the status of CBD and to say to the
Speaker 1: d e A, we're rescheduling. So the d A, from
Speaker 1: my perspective, has been at multiple points of this crisis,
Speaker 1: you know, dragging its feet and trying to do everything
Speaker 1: it can to pursue an agenda that's not in line
Speaker 1: with fixing the opioid crisis. Let's turn to the law now,
Speaker 1: how has the opioid crisis shaped American law? I think
Speaker 1: you can draw a straight line from the staggering rise
Speaker 1: in overdose deaths in the late nineteen nineties, which really
Speaker 1: drew an unprecedented level of attention, to the fact that
Speaker 1: something like twenty million Americans are living with various substance
Speaker 1: use disorders. You can draw a straight line between the
Speaker 1: opioid crisis and the decision in two thousand eight past
Speaker 1: Mental Health Parity, which President Bush, George W. Bush signed
Speaker 1: into law, which was the first time that we said
Speaker 1: we're not going to allow health insurance to discriminate between
Speaker 1: medical surgical care and substance use disorder and other mental
Speaker 1: health care. And likewise, when you look at what the
Speaker 1: Obama administration and Congress put together in crafting the Affordable
Speaker 1: Care Act, it's unmistakable that the opioid crisis was in
Speaker 1: people's thoughts in the making the decision to include substance
Speaker 1: use disorder treatment for the very first time as one
Speaker 1: of the ten essential health benefits. Even when you look
Speaker 1: at the fight to dismantle the Affordable Care Act and
Speaker 1: the Trump administration's efforts to repeal, what we saw was
Speaker 1: that Republican senators flipped over and voted to block the
Speaker 1: rollback of the Medicaid program through the Affordable Care Act,
Speaker 1: specifically because of the importance, the critical importance of getting
Speaker 1: more acts us to care for people across the country
Speaker 1: through the Medicaid program to deal with the opioid crisis.
Speaker 1: So there's been a whole series of changes in how
Speaker 1: we approach addiction and basically bringing addiction treatment into the
Speaker 1: fold of healthcare, which it wasn't twenty years ago, and
Speaker 1: I think that's directly attributable to the opioid crisis. There's
Speaker 1: there's lots of other smaller examples, but that's the big one.
Speaker 1: At the beginning I mentioned the multi district litigation. Which
Speaker 1: side has the advantage in those lawsuits, the plaintiffs or
Speaker 1: big pharma, as we saw with big Tobacco litigation not
Speaker 1: too long ago and the NFL the concussion litigation. When
Speaker 1: you have these mass torque class actions that hit on
Speaker 1: core societal issues, big pharma has a problem. For many,
Speaker 1: many years, companies like Produe Pharma were successful at settling
Speaker 1: cases and avoiding discovery right avoiding depositions of drug any
Speaker 1: executives and doctors, and calling attention to it. But the
Speaker 1: bottom line is this case is a ticking time bomb
Speaker 1: for big pharma and it's almost in inevitability that this
Speaker 1: case will have to be settled. We're right now kind
Speaker 1: of in the early stages of discovery in the multi
Speaker 1: district litigation, where there are tens of millions of documents
Speaker 1: filtering in through these you know, digital rooms, which are
Speaker 1: going to take a long time to go through, and
Speaker 1: it's likely that we're gonna have some depositions, probably another
Speaker 1: year before we're on the horizon for a settlement. But
Speaker 1: I think it's inevitable that Big Farmer will have no
Speaker 1: choice but to but to settle this case. So there's
Speaker 1: no possible wave. We would literally see one pharmaceutical company
Speaker 1: after another go out of business. It's hard to imagine
Speaker 1: how they couldn't find a jury that there could be
Speaker 1: a journey in the United States that would not be
Speaker 1: inclined to find them responsible. Thanks for being on Bloomberg Law. Harry.
Speaker 1: That's Harry Nelson. His new book is called The United
Speaker 1: States of Opioids, A Prescription for Liberating a Nation in Pain.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg