When Attorney General Jeff Sessions appears Thursday at a White House opioids summit, skeptics are likely to hit him with this question: Was his “statement of interest” in support of local governments suing Big Pharma a declaration of war — or saber-rattling?
Defense attorneys who have crossed swords with the federal government before, and advocates who have been pushing the Trump administration to make good on a promise to end the opioid epidemic, say Sessions’ tough talk is likely more of the latter than the former.
“While it is difficult to assign motives to an act of the DOJ, this is a PR move, not a sincere attempt to address the opioid crisis,” attorney David Cattie said.
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The targeted drugmakers and distributors most likely are already “preparing to offer compensation to resolve this litigation anyway,” Cattie said. “Is this the administration’s way of signaling to pharma that it wants the companies to settle these cases for some ‘big’ number so the administration can take credit for it? Perhaps.”
Trial lawyer Jesse Gessin said that if the DOJ were serious about holding pharmaceutical company’s feet to the fire, it would join the hundreds of cities, states and other local governments that have accused the companies of creating a crisis by fooling the public into thinking opioids were safe.
“The statement of interest does not make the government a party to the lawsuit,” Gessin said.
It also enables the Trump administration to make it appear they are taking a hard line with an industry that has given millions in campaign contributions to Republicans and Democrats alike.
“The DEA has known for some time that the pharmaceutical manufacturers and distributors were violating federal law, “ Gessin said. “If the government was going to bring a criminal case, they would have brought it. In fact, the government will not commit to joining the multidistrict civil litigation, why should the companies be concerned about criminal liability?”
Greg Williams, co-founder and executive vice president of Facing Addiction, within the National Council on Alcoholism and Drug Addiction, said in a statement they “applaud the Department of Justice for getting involved in this important litigation against opioids manufacturers and distributors.”
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“They must be held accountable and must pay billions, not millions, in reparations to our communities and federal government," Williams said.
Williams also said he expects Sessions will be grilled about what exactly the DOJ will be doing in support of the hundreds of lawsuits that have already landed on the desk of U.S. District Court Judge Dan Polster in Cleveland.
“The attorney general’s move is mostly symbolic,” said Daniel Raymond, deputy director of policy and planning with the Harm Reduction Coalition. “For an administration that has been remarkably friendly to corporate interests, it does beg the question about the Justice Department’s appetite to more directly taking on those companies.”
The deadly opioid epidemic has been a public relations disaster for the drug companies, as they have drawn bipartisan and national scorn.
Gessin said that if he was defending them the fact that Sessions has been talking tough would not cause him to rethink his legal strategy.
“I’d be more afraid of the big time plaintiff’s lawyer on the multidistrict civil litigation than the government,” he said.
How would he defend the drugmakers? Blame the distributors.
“That would be my strategy,” he said. “Blame it on them for not following federal law. That’s why they exist. What good is the distributor if they can’t distribute lawfully? This is really a distribution case, not a manufacturing case.”
Cattie said whatever happens the drugmakers and distributors will wind up the winners.
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“This is just the cost of doing business for opioid manufacturers and distributors,” he said. “If I told you that you could make billions of dollars selling a product but that one day the government would make you pay a fine or settlement or some small percentage of that, I am assuming you would sell the product anyway.”
What worries Cattie is what will happen to the doctors who prescribed the opioids.
“It is important to note that while opioids are abused, they are legitimate pain relievers,” Cattie said.
“Sessions is a 1980s drug warrior and I can guarantee you he will be ramping up prosecution of physicians who specialize in pain management," he added. "For every ‘pill mill’ doctor, there are 100 other doctors whose only concern is the alleviation of human suffering. These doctors are already caught between their oath to their patients and fear that the DOJ will come after them.”
In fact, the DOJ’s new opioid fraud squad’s first indictment was handed down against a Pittsburgh-area doctor, Andrzej Kazimierz Zielke, who allegedly prescribed addictive painkillers to patients and insisted on being paid in cash.