Later On

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How the first federal investigation into the maker of OxyContin looked to overdose-affected families in western Virginia—and how it fell short.

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Beth Macy reports in Politico:

In February 2001, a 39-year-old IT worker named Ed Bisch was summoned home to his working-class enclave of Philadelphia after taking a frantic call from his daughter. She had found her 18-year-old brother incoherent in the bathroom the night before, and when she asked him what was wrong he said he’d had too much to drink. The next morning, she found him bluish and unresponsive.

Bisch arrived home to find a pair of emergency workers in front of his house. His son, Eddie, was a high school senior, a soccer player with decent grades and plans to attend a local culinary school. Eddie had complained of feeling sick recently, but it had not crossed his father’s mind that he was in opioid withdrawal. Bisch had suspected Eddie was drinking and maybe smoking pot but hadn’t considered pills. They had plans to fly to Florida for a father-son fishing vacation in just six days.

“I’m sorry,” one of the paramedics told Bisch. Eddie was dead.

As friends gathered, Bisch was still in shock and searching for answers when he asked Eddie’s friends what his son had taken.

“Oxy,” one said.

“What the hell’s an Oxy?” Bisch wanted to know.

The first time Ed Bisch heard the word “OxyContin,” his son was dead from it.

Within months, Bisch would find himself at the forefront of a parent-led nationwide pushback against Purdue Pharma, the maker of the powerful opioid OxyContin, organizing other parents of the overdosed dead and soon funneling their stories to a nascent federal investigation centered in western Virginia. Oxy overdoses had already swept through Appalachia and other distressed rural areas in the nation, reaching epidemic proportions in the Northeast and West and, eventually, in most corners of America. In 2012, the highest rates of opioid prescriptions per person in the country were in mostly Appalachian states.

The Virginia-led federal investigation culminated in a plea agreement in 2007 and a $634.5 million fine against Purdue’s parent company and its top executives for criminally misbranding the drug. Since then, more than 20 states have sued Purdue Pharma, and recently, the company dismissed most of its sales staff in response to mounting allegations over its marketing tactics. A federal judge in Cleveland is now presiding over massive multijurisdictional litigation against opioid distributors, retailers and manufacturers, including Purdue.

But the story of this first federal investigation illuminates how holding Purdue Pharma accountable was so hard in the first place, and why it took so long to rein in the marketing practices that led to widespread addiction and saddled local communities with costs that have overwhelmed law enforcement, hospitals and even indigent burial funds.

It also looks different 10 years on: We now know, in a document only recently made public, that federal prosecutors had originally recommended felony charges that could have sent top Purdue execs to prison if they were convicted. In that report, the prosecutors said the company had knowingly concealed OxyContin abuse shortly after the drug’s 1996 release. We also know that top Justice Department officials in the George W. Bush administration did not follow the Virginia prosecutors’ recommendations—and refused to indict the executives on felony charges, instead pursuing lesser misdemeanor charges for them and no jail time.

Ten years on, we know, too, that the key figures on Purdue’s side—ex-New York City Mayor Rudy Giuliani, who was consulting for the company and leveraging the height of his post-9/11 popularity on its behalf, and Mary Jo White, the chief counsel for Purdue’s top lawyer, Howard Udell—went on to even more high-profile careers.

What we don’t know so much about is the improbable cast of grieving parents and western Virginia characters who worked to bring the case to court, and how their struggle to be heard over Purdue Pharma and Giuliani foretold the coming opioid epidemic.

***

The burgeoning OxyContin epidemic didn’t hit the national media until the same month Bisch came home to find his dead son, when New York Times reporters Barry Meier and Francis X. Clines swooped in to central Appalachia to deliver a front-page story on Operation OxyFest, a nine-month federal investigation that produced the biggest drug-abuse raid in Kentucky history. “We caught 207” user-dealers, a federal prosecutor told the reporters. Most of those arrested were Oxy-addicted patients who had coaxed pills out of doctors who were either busy, slipshod or quietly cooperative in overprescribing the drug. “We didn’t catch half of them; that’s how pervasive this thing is.”

From his home in Philly, Bisch retreated to his computer, where he was shocked to learn that his son’s death had been the region’s 30th opioid overdose in the past three months. How was that possible when he’d only just learned the word? “The internet was still new, and back then it was mostly message boards as opposed to websites,” he told me.

Bisch channeled his grief into computer code, forming a national coalition of parents of the dead, called Relatives Against Purdue Pharma, or RAPP. Hoping to warn other families, he created his own message board, giving it the bluntest moniker he could think of—OxyKills.com. Within weeks it had morphed into a scrolling database of grief, warnings and statistics. The website became a clearinghouse for the latest Oxy-related overdose numbers reported by local medical examiners and the Drug Enforcement Administration, along with heart-wrenching stories of high-school wrestlers and cheerleaders who had succumbed to OxyContin overdose. Bisch promoted news stories about OxyContin, such as when the New York Times noted that the drug’s sales in 2001 hit $1 billion, outselling even Viagra.

Bisch and the other parents made an informal alliance with a pair of people who were doing more than anyone in Appalachia to sound the alarm on OxyContin overprescription: Dr. Art Van Zee and Sister Beth Davies, an activist nun. Bisch had read about Van Zee and Davies in newspaper articles, and he knew about their unsuccessful David vs. Goliath fight to persuade Purdue to take OxyContin off the market in the early 2000s until it could be reformulated to be abuse-resistant. Then, as now, Davies counseled patients with Van Zee at her Addiction Education Center in Pennington Gap, Virginia. “Not a week goes by that I’m not talking with parents about their young adult children that are losing their jobs, spouses, children, and homes to this addiction,” Van Zee wrote in a 2000 letter to Purdue executives, noting that 20 percent of local high-school seniors had reported trying Oxy. And in another letter that year: “My fear is that these [addiction-hit rural communities] are sentinel areas, just as San Francisco and New York were in the early years of HIV.”

If OxyContin seeded the opioid deluge in communities across the nation, Bisch and his fellow activists nationalized the opposition to it. Relatives Against Purdue Pharma became his message board sprung to life, a nonvirtual resistance party that would assert itself politically and in person over the next decade.

Together the parents-turned-activists would lobby for the creation of statewide prescription monitoring programs, or PMPs, so doctors could check a patient’s prescription records and prevent themselves from being shopped. They would battle—online and at times in person—with chronic-pain patients who praised the drug for allowing them to function and to sleep through the night. They would march and hold up pictures of their dead children outside Purdue-sponsored pain management seminars.

Among RAPP’s first courtroom targets was the 2003 civil lawsuit against Purdue brought by former Florida Purdue sales rep Karen White. She’d been fired in 2002 for allegedly having paperwork irregularities, poor communication skills and declining sales, the company said. But White claimed in her legal filing that she was actually fired for refusing to sell to doctors who were illegally overprescribing OxyContin to their patients. “We had such high hopes that she would be one of our saviors,” said Barbara Van Rooyan, a RAPP parent in California who unsuccessfully petitioned the Food and Drug Administration to recall OxyContin until it could be made abuse-resistant, and to restrict its use to cases of cancer and severe pain.

At the time, Purdue’s legal bills were mounting—to the tune of an estimated $3 million a month—and the company still had 285 lawsuits pending against it. To help burnish its image in the face of mounting legal, financial and public-relations problems, Purdue had hired Republican insider Rudy Giuliani and his consulting firm, Giuliani Partners, in 2002. Just a few months after his lauded response to the 9/11 terrorist attacks, Giuliani’s job was to convince “public officials they could trust Purdue because they could trust him,” as the New York Times put it.

Purdue Pharma heaped praise on its American hero and new political star: “We believe that government officials are more comfortable knowing that Giuliani is advising Purdue Pharma,” Udell gushed in a promotional brochure. “It is clear to us, and we hope it is clear to the government, that Giuliani would not take an assignment with a company that he felt was acting in an improper way.”

After all, Giuliani also had just been named Time magazine’s Person of the Year 2001.

But RAPP hoped that Giuliani’s magic would not save Purdue from White’s wrongful-termination case. The parents believed the lawsuit would prove that Purdue’s marketing practices had crossed a legal line. In 2005, Bisch drove 12 hours from Philadelphia to White’s trial so he could sit in a federal courtroom in Tampa, Florida, beside Lee Nuss, who’d also lost an 18-year-old son to OxyContin overdose. It was the first case against Purdue to progress beyond summary judgment, and White was asking the jury to award her $138,000 in lost wages plus $690,000 for emotional pain. Depressed and anxious since her dismissal, she had never before been fired from a job.

“They were counting on us to run out of steam,” Bisch recalled. “They were all lawyered up and Rudy Giuliani’d up.” He counted 10 lawyers on Purdue’s side, not including staff, quarterbacked by the formidable Atlanta-based firm of King and Spalding, whose clients ranged from cigarette makers to Coca-Cola. White’s attorney estimated Purdue spent $500,000 defending the case, an amount a Purdue spokesman declined to confirm.

White had a single lawyer and no staff.

The jury ruled in favor of Purdue, whose lawyer called the case a “personal disagreement with promoting the drug in an entirely legal way.” While White believed calling on sleazy pill prescribers was illegal, her lawyer had not proved the illegality of the company’s sales strategies.

“The court basically said, ‘Don’t tell us what you believe. Tell us what you know,’” explained University of Kentucky legal scholar Richard Ausness, who has written about the difficulty of winning civil cases against Purdue, citing among other reasons the company’s hefty defense chest.

With that loss behind them, Bisch and the rest of RAPP geared up for another fight.

***

Back in western Virginia, a young U.S. attorney with political aspirations had been secretly working on his own attempt to defeat Purdue in court since 2002, when he started investigating the company’s marketing practices. In his mid-30s, John L. Brownlee was brash and a little bit of a cowboy. With a ruddy complexion and a mop of reddish-brown hair, he had a boyish appearance that belied his hard-charging demeanor. As a former paratrooper and Army Reserve JAG Corps captain, he was not afraid of high-stakes drama.

Or the press. He was married to a local news anchor, Lee Ann Necessary, whom he’d met on the job a decade earlier. He was so fond of calling news conferences that he traveled with a portable podium with fold-out legs.

When a New York Post reporter broke the news in 2005 that . . .

Continue reading.

Written by Leisureguy

6 August 2018 at 12:23 pm

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