CLEVELAND (Legal Newsline) - A $500-an-hour plaintiff expert helped attorney Mark Lanier pull together the strands of a landmark public-nuisance case against big pharmacy chains, telling jurors that CVS, Walgreens and Walmart all “collaborated in the campaign of misinformation” about the safety of narcotic painkillers that triggered the opioid crisis.
Testifying on the third day of trial in federal court in Cleveland, Dr. Anna Lembke, a Stanford Medical School addiction specialist, ticked off all the textbook elements of a public nuisance case against the pharmacies, often delving into specific legal terms. Relying primarily on a handful of internal documents that were more than 20 years old, she argued the pharmacies were paid by Purdue Pharma and other unidentified drug companies to distribute “misinformation” about opioids to their own pharmacists and patients.
The pharmacy chains “weren’t just dispensing these opioids like a vending machine,” Lembke testified. “They were collaborating.”
On cross-examination by a CVS defense attorney, Lembke admitted one 2001 email from Purdue that she said demonstrated the company’s collusion with Purdue didn’t actually mention opioids and another was a pamphlet explaining, in detail, how to identify and prevent diversion of narcotics. Lembke also told jurors pharmacists were in a unique position to identify the “red flags” of doctor-shopping and diversion. But on cross examination she acknowledged that physicians were also required to check state-run databases to make sure their patients weren’t obtaining prescriptions from multiple providers.
Lembke still provided key elements of the case two Ohio counties are trying to make: That pharmacy chains, which include regional chain Giant Eagle, coordinated efforts with drug companies to mislead doctors, patients and even their own pharmacists into believing opioids were safe and effective for treating pain. As a critical part of the legal case, Lembke described how opioids wreak fundamental changes in brain chemistry, creating addicts who may be dependent on drugs for years.
To prove the chains caused a public nuisance, plaintiff lawyers have to show that the pharmacy chains unreasonably interfered with a public right – in this case, the right to health and safety – with conduct that creates a “permanent or long-lasting effect.” Under folksy questioning from Lanier, who used his trademark technique of following along with scribbled notes on an overhead projector, Lembke attempted to establish all of these elements of the case.
Lembke, who said she has been paid $400,000 by plaintiff lawyers so far, was careful to distinguish actual pharmacists from the companies that employed them, perhaps because jurors would respond unfavorably to attacks on their neighborhood pharmacists.
“It’s fair to say of pharmacists, many of them were duped,” Lembke said. “There is an important distinction between pharmacists and the corporate structure.”
The trial is overseen by U.S. District Judge Dan Aaron Polster, who has repeatedly urged the pharmacy chains to settle, once even threatening them with bankruptcy if they didn’t. In arguments over evidence that have erupted sporadically throughout the trial, the judge sometimes seemed overwhelmed, throwing his hands up and saying “I don’t know what to do.”
The pharmacy chains have complained repeatedly about rulings that appear to favor the plaintiffs, and the private lawyers who are representing them for contingency fees that have already mounted to billions of dollars with settlements against wholesale distributors and manufacturers. This summer, the judge rescinded an order restricting the jury pool to people with vaccinations, after the pharmacies complained it would not produce a fair cross-section of society.
In trial this week, lawyers for the pharmacies objected when Lanier attempted to guide Lembke into areas outside her expertise, including discussing the efficacy of management programs to control drug diversion. The judge allowed her to testify about the pharmacies’ duties under the Controlled Substances Act, however, a hotly disputed area of the law involving differing interpretations of Drug Enforcement Administration guidance documents.
On cross-examination by CVS attorney Graeme Bush, Lembke admitted she hadn’t examined several programs the company uses to detect and stop illegitimate prescriptions and diversion. She also had to abandon her claim pharmacists had a duty to investigate each and every prescription for high-dose opioids. Asked how a pharmacist should handle prescriptions for chronic pain from a doctor the customer has been seeing for years, Lembke initially said each prescription should be fully investigated, including calling the doctor to explain why it was needed.
“The pharmacist should call every time the patient comes in?” Bush asked. “After two or three years, with the same doctor?”
“Not every time, no,” she said.
The trial continues next week with expected testimony from Joe Ranazzisi, a former DEA official who has since become an expert for the plaintiffs.