CHARLESTON – State attorneys attempted to discredit a defense expert witness as unreliable during May 18 testimony in the Mass Litigation Panel opioid trial.
“A judge called your opinions speculative and unreliable,” David Ackerman, the attorney for the state, said.
“I respectfully disagree with the judge’s opinion,” said Dr. Sean Nicholson, a health economist and Cornell University professor who had called by defense attorneys to dispute that over-aggressive marketing of opioid drugs in West Virginia caused an epidemic.
The trial in the Kanawha Circuit Court is being streamed live courtesy of Courtroom View Network.
Opioid suppliers Teva, Cephalon (now part of Teva) and Allergen are accused of ignoring the addictive danger of opioid pills so they could increase their profits and causing an epidemic. The charges include creating a public nuisance and violating the West Virginia Consumer Protection and Control Act.
In 2019, West Virginia Attorney General Patrick Morrisey filed lawsuits against the drug manufacturers in the Boone Circuit Court. The case was subsequently moved to the Kanawha Court and is being heard in a bench trial with no jury. Circuit Judge Derek Swope is to decide the verdict.
Plaintiff attorneys claim the epidemic started in the 1990s when the medical community, in the beginning encouraged by a few "opioid revisionist doctors" and later supported by drug manufacturers and distributors; abandoned what had been a former tighter policy of prescribing opioids mostly for terminal and cancer treatments. Instead they alleged, backers of more opioids began to recklessly prescribe and promote the drugs for less serious conditions, describing pain as a fifth vital sign (as in a pulse).
Pain alone is not a vital sign, the state’s attorneys claim.
Anti-drug diversion in-house programs required of the companies by the DEA were ineffective, the attorneys contended. They maintained that addicts got their start using prescription opioids and then graduated to heroin acquired on the street or more recently fentanyl, when the prescription opioids became too expensive or hard to get.
Defense attorneys argue the epidemic was caused by societal problems, illegal drug abuse including heroin and fentanyl, and not by manufacturing companies legally supplying doctors and hospitals with the pain pills they prescribed.
Janssen, the drug subsidiary of Johnson & Johnson, settled with the state on April 18, agreeing to pay $99 million although company officials denied any wrongdoing. An additional defendant Endo also settled with the state in March for $26 million.
A suspicious drug order includes one that is larger in quantity than normal or more frequent ordering than normal.
During the May 18 session, Nicholson challenged the testimony of witnesses called by the state such as Dr. Andrew Kolodny, medical director of opioid policy research at the Heller School (Brandeis University). Kolodny testified the epidemic was caused by the irresponsible promoting of opioids for company profits.
“These (plaintiff) experts did not show a causal analysis in this case,” Nicholson said.
“Have you seen any evidence that the marketing (by sales reps) of opioids caused harm?” a defense attorney asked.
“No, I have not,” Nicholson said.
Under cross examination, Ackerman sought to undermine Nicholson’s testimony by portraying a lack of expertise and a history of testifying for drug companies.
“You were retained by Teva in 2018?” Ackerman asked.
“Yes,” Nicholson said.
“You have no specific experience in the field of prescription opioids, correct?”
“That’s correct.”
“You have not studied epidemiology?”
“Correct.”
Nicholson agreed he had served as a defense witness in opioid trials in New York, Florida, Ohio and Rhode Island.
“Your job was to evaluate the plaintiffs’ experts reports, that they were all the same (inaccurate)?” Ackerman asked.
“There were some similarities,” Nicholson countered.
“The same economic standards as here in West Virginia?”
“Yes.”
“You’re not offering any opinions as to the cause of the opioid crisis, correct?”
Nicholson said he was not.
“You criticize them (plaintiff experts) for performing an analysis you have not performed,” Ackerman said.
Nicholson agreed he had not performed the same analysis as the plaintiff experts.
“You have no experience in the field of addiction and you’re not a medical doctor? You’re not offering an opinion on whether an opioid prescription is appropriate?”
Nicholson agreed.
“Dr. Kolodny is a medical doctor.”
“Yes,” Nicholson said.
“You didn’t evaluate Teva’s marketing.”
“That’s right, I focused on the plaintiffs’ methods,” Nicholson said.
“You understand that Teva and the other defendants thought to downplay the risk of opioids, and change the (drug) culture?”
“Yes.”
Ackerman said Nicholson had submitted two amicus briefs on behalf of Teva to the Supreme Court in 2013.
Nicholson explained that the filings were antitrust opinions concerning when a generic drug (a copy not an original branded drug) should be allowed to enter the marketplace. He disagreed with the opinion of a judge who said his presentation was speculative, and lacking factual support.
Ackerman got agreement from Nicholson that he had not analyzed how unbranded marketing impacted branded marketing, adding that an exhibited chart made by Nicholson showing opioid prescriptions in the state was skewed – it did not take into account generic drugs.
Nicholson justified his findings on the chart.
Ackerman said the chart also lacked information on the drug dosage of individual prescriptions.
“It would still show up as one prescription,” Ackerman said. “It might be one pill or 30 pills. Not all (drugs) have the same potency.”
Ackerman used an analogy saying that the chart lacking such information instead of looking at the "whole foot" only looked at the "pinkie toe."
“I believe using the number of prescriptions (on the chart) was appropriate,” Nicholson maintained.