SEATTLE (Legal Newsline) - Defense attorneys for three of the country’s biggest distributors of opioids disputed the testimony of a marketing expert witness called by Washington State, saying the companies did not cause a drug overdose epidemic.
They simply fulfilled orders made legally by pharmacies and used by doctors in filling prescriptions.
However, Jakki Mohr, a professor of marketing at the University of Montana specializing in advertising and distribution information technology, disagreed.
“All the players had a role in creating the crises,” Mohr said.
Prescription drug distributors McKesson, Cardinal Health and AmerisourceBergen Corp. are accused of irresponsibly over-promoting and distributing opioid drugs to pharmacies and doctors' offices that led to multiple overdose deaths in the state. The Washington State Department of Health estimated 1,200 in 2020.
The trial in the King County Superior Court is being streamed live courtesy of CourtroomView Network.
The lawsuit launched by Washington State Attorney General Bob Ferguson is asking for $32 billion in damages to enact anti-drug programs. A state victory could result in a much higher award when surrendered profits and penalties are added in.
Distributors take pills from the manufacturers and supply them to hospitals, doctor’s offices and pharmacies. The most commonly shipped opioid drugs include OxyContin, Hydrocodone, methadone and fentanyl.
Testifying on Monday and Tuesday, Mohr told a courtroom the distributors continued to ship pills if not in an illegal manner, then in a way that did not adequately recognize the danger of the highly addictive substances and provide greater safeguards in the process.
Defense attorneys attempted to pick apart that argument saying that doctors were the final arbiter of who should receive prescribed drugs and not the distributors.
Kim Watterson, attorney for AmerisourceBergen representing all three companies, asked Mohr if her task was to determine if the defendants marketed opioids.
Mohr agreed.
“There are situations where the marketing would cause me grave concern,” Mohr said.
“It’s not improper, right?” Watterson asked.
“It does give me pause.”
“It wasn’t unlawful?”
“No.”
“You can’t say if the defendants marketing impacted prescribing (opioids),” Watterson said, “and led to doctors prescribing in an inappropriate manner.”
“No, that was not in my scope,” Mohr answered.
“The distributors don’t focus on one product (opioids), they have many different products to serve their customers.”
Mohr agreed.
“You’re not an expert on medical (doctor) decision making.”
“No,” Mohr said.
“The Food & Drug Administration (FDA) regulates the pharmaceuticals industry.”
“It does.”
“In order to get an opioid, you must present a valid prescription written by a professional (doctor) to a pharmacy, correct?”
“Correct,” Mohr answered.
“The defendants don’t call on doctors to convey the risks and benefits.”
Mohr agreed, noting that “The defendants do not have sales forces.”
“Not all marketing has an impact on sales,” Watterson said.
“I’m not sure I agree,” Mohr countered.
Mohr agreed that some advertising was for the purpose of building awareness of a product and not just to build sales. Advertising could be direct or indirect.
“You said that folks (distributors) need to be more cautious with marketing (opioids),” Watterson said.
“Yes,” Mohr answered. “When there is a danger there is a heightened duty of care.”
“You did not study the buying habits of Washington pharmacies?”
“Correct.”
“Is following doctor’s orders a good thing?”
“It’s very difficult to say,” Mohr said. “If a doctor prescribed for my child 60 days of opioids, I would say no.”
Mohr said her evaluation of the marketing did not include the study of medically inappropriate prescribing or whether prescriptions were made for legitimate purposes.
Tim Hester, attorney representing McKesson, cited the case of Purdue Phama, the manufacturer of the drug OxyContin. He displayed a document that said the company had sales representatives who misleadingly portrayed the risks and the benefits of the drug. Purdue under a crush of lawsuits filed for bankruptcy in 2019 and reemerged as a new company called Knoa. Company officials pled guilty in 2020 in a New Jersey court of defrauding the U.S., violations of the Food, Drug and Cosmetic Act as well as anti-kickback statutes.
Hester said Purdue pursued an aggressive advertising campaign to promote the use of opioids. Mohr agreed.
“They (Purdue) spent billions in marketing across the decade (2000’s),” Hester said. “McKesson spent nowhere close to that in marketing. You have no evidence McKesson made misleading statements.”
However, Mohr maintained that the distributors played an essential role in the opioid situation.