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Monday, January 27, 2020

Opioid plaintiff lawyers sanctioned over key witness as defendants decry lack of evidence


By Daniel Fisher | Apr 9, 2019


CLEVELAND (Legal Newsline) - Plaintiff attorneys have been sanctioned over their failure to disclose a consulting agreement with a key witness in the opioid multidistrict litigation, as defendant companies complain they are being stonewalled on other evidence critical to the case.

Summit and Cuyahoga counties in Ohio will not be able to present testimony from Dr. Russell Portenoy in an upcoming trial against opioid manufacturers and distributors, under an order by Special Master David Cohen. Plaintiff lawyers settled with Dr. Portenoy and hired him as a consultant in March 2018, Cohen found in his April 5 ruling, yet declined to reveal the agreement for more than 10 months despite repeated requests by defendant companies for any agreements or releases with healthcare practitioners who might be involved with opioid use in the Cleveland and Akron areas. 

Dr. Portenoy was among the most prominent supporters of increased use of opioid painkillers in the 1990s and wrote papers saying long experience with cancer patients suggested powerful painkillers were safe to use for treating chronic pain. Purdue Pharma considered him a “Key Opinion Leader” useful for convincing other prescribers that opioids were safe for use. Plaintiff lawyers later called him “a paid shill for manufacturer defendants,” Cohen wrote.

Dr. Portenoy is a crucial witness for proving allegations that opioid manufacturers shaped the opinions of prescribing physicians with false and misleading research and marketing materials, particularly information suggesting delayed-release pills like Oxycontin were less subject to abuse. By signing a consulting agreement with the doctor and failing to disclose it to the other side, Cohen said, plaintiff lawyers prevented the defense from examining “the dramatically-changed nature of their relationship with Dr. Portnoy.”

Plaintiff lawyers said their failure to disclose the agreement was simple oversight, but Cohen rejected that explanation. Plaintiff lawyers discussed with the state of Oklahoma whether to reveal the agreement with Dr. Portenoy. 

Motley Rice attorney Linda Singer both drafted an agreement with Dr. Portenoy and signed responses from Summit and Cuyahoga counties saying “no such documents exist” when defense lawyers asked for any contracts with healthcare practitioners, Cohen wrote.

Even if they acted improperly, plaintiff lawyers said, the omission was harmless because defendants can still depose Dr. Portenoy. Cohen disagreed.

“Dr. Portenoy’s importance as a witness, and plaintiffs’ repeated failure to disclose his cooperation during months of fact discovery, suggests stronger medicine than a monetary fine is needed,” Cohen wrote. 

He removed Dr. Portenoy as a witness from the first bellwether trial in the opioid MDL scheduled for this fall, but not future trials. He also gave the plaintiffs until April 15 to object to his ruling.

Defendants, meanwhile, renewed their complaint this week that plaintiffs have failed to provide a single example of an opioid painkiller that was wrongfully prescribed because of alleged false marketing or other illegal activities. In a series of discovery rulings last year and into this year, plaintiff attorneys were ordered to turn over evidence of at least 500 prescriptions written in Ohio that reflected “alleged misrepresentations, omissions, or other alleged wrongdoing by any Defendant.” They were ordered to identify who made the misrepresentation, who relied upon it, and who paid for the resulting prescription.

Plaintiffs instead turned over a list of prescriptions they considered “medically unnecessary” and patients who were allegedly harmed by them, without identifying anyone who prescribed the pills. Defendants complained, saying they can’t defend themselves against claims they misled prescribers without being given any examples of cases where that allegedly occurred.

Cohen rejected their complaint in a March 26 ruling, however, saying the plaintiffs will rely on “aggregate proof” to link the behavior of defendant companies to the opioid crisis. They will argue, in essence, that every opioid prescription was tainted by false marketing or other misbehavior by manufacturers, distributors and pharmacies.

“Ultimately, plaintiffs simply do not claim that a specific misrepresentation made by a specific defendant representative led to the writing of a specific prescription,” Cohen wrote. “Therefore, it is not reasonable to require plaintiffs to provide this information.”

Defendants say discovery rules entitle them to question prescribing physicians about whether they were misled about the risks of opioids. The plaintiffs say this information is irrelevant because doctors are unlikely to remember specific materials they read or heard about.

“This position may be convenient for Plaintiffs, but it is legally untenable and undermines Defendants’ fundamental due process rights to develop the facts needed to defend themselves,” the companies said. They cited ruling earlier this year by a Connecticut court dismissing claims by several cities because they failed to connect the actions of drug companies to the abuse of opioids, most of which involves illegal narcotics. The judge described the litigation as “junk justice.”

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