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Mind and Body

Marking 50 years of the failed war on drugs

The corporate legal strategy in two major trials about the opioid epidemic attempts to shift blame onto the victim and to remove liability from drug makers and distributors

Image by Charlotte Bismuth, courtesy of Bistmuth's Twitter feed.

A drawing by Charlotte Bismuth post on Twitter, who has been chronicling the proceedings in federal bankruptcy court in White Plains, N.Y..

By Richard Asinof
Posted 6/21/21
Decisions pending in two federal court cases involving corporate liability for the opioid epidemic threaten to undercut attempts to hold the manufacturers and distributors of addictive prescription painkillers accountable for their actions.
Are there corporate lobbyists involved in blocking the creation of a new public health state laboratory in Rhode Island? Will Rhode Island move ahead with the creation of a harm reduction center and safe injection site? What are the ramifications of low reimbursement rates for behavioral and mental health providers involved with recovery efforts? Will there be an audit conducted of private contractors doing work for Medicaid in Rhode Island? What kinds of regulation of pharmacy drug costs can be considered at the state level as a way to protect against the ever-escalating medical costs in Rhode Island? Is there a way to ban step therapy as a required process before patients can access to the most effective drugs?
The celebration of Juneteenth in Rhode Island, with the placement of the first of two slave medallions in Bristol, which once served as a key port in the transatlantic slave trade. The medallions serve as a powerful reminder of the pivotal role played by Rhode Island in the slave trade.
Often left out of the conversation is the fact that, at the heart of the slave trade was sugar cane, grown by slaves on plantations in the Caribbean, then processed into rum and shipped back to Europe.
Today’s sugar trade involves sugar produced from beets and corn [in large-scale agricultural farms that deploy pesticides and herbicides before being processed into fructose] and added to sugary drinks and foods, to which many Americans are addicted.
Our tax dollars already support the agricultural industry tax credits for the production of sugar from corn and beets.
To those who oppose the tax on sugary drinks in Rhode Island because of a political philosophy opposed to new forms of taxation would do well to consider how residents are already participating in a tax scheme to support the beverage industry through agricultural tax credits. Any effort to prevent the onslaught of the chronic disease of diabetes would produce far greater returns in the lowering of medical costs in the state.

PROVIDENCE – Two of the most consequential legal proceedings in the last decade are reaching their climax. The rulings promise to reshape the nation’s dysfunctional relationship with addictive painkillers, behavioral health interventions and corporate accountability under the law, for the worse.

Equally worrisome, the strategies being pursued in the courtrooms by the legal teams representing the manufacturers and distributors of addictive prescription painkillers have sought to remove corporate responsibility, claiming: Prescription painkillers were not a pathway to heroin; patients with a history of poor health, not the companies, were the culprits; and the owners should not be punished personally for their firms’ bad actions.

• In a federal bankruptcy court in White Plains, N.Y., the Sackler family, owners of Purdue Pharma, which is seeking to restructure itself under bankruptcy protection, are on the verge of escaping any future financial personal liability for their role in creating the opioid epidemic through the manufacture and promotion of OxyContin.

The only thing standing between the Sacklers [along with a long list of hundreds of their consultants and accomplices] escaping immunity from future legal accountability is the bankruptcy judge’s apparent fear of public outrage, as chronicled by the insightful reporting of Charlotte Bismuth, a former prosecutor and author of Bad Medicine: Catching New York’s Deadliest Pill Pusher.

“I am concerned that if I don’t appoint an examiner, the next press release will be ‘Court refuses to appoint examiner to show process was fair,’” U.S. Bankruptcy Judge Robert Drain said, in a hearing held on Wednesday, June 16.

At issue was a request made to the judge to appoint a court examiner to investigate whether Purdue Pharma was still under the influence of the Sackler family when the firm negotiated the $4.5 billion settlement that would protect the Sacklers from any future financial liabilities for its OxyContin products.

The request, made by Peter Jackson, founder of an advocacy group of parents whose children died as a result of opioid abuse, and Jonathan Lipson, a professor at Temple University School of Law, resulted in a tirade by Judge Drain.

Before acceding to the request for an examiner, Judge Drain publicly berated both Jackson and Lipson, in what Bismuth described as personal attacks. “It really all happened and it made no sense at all. I will add that it was an exceptionally cruel, puerile and inappropriate show for a federal judge,” Bismuth tweeted.

In summing up the bizarre goings-on at the June 16 hearing, Bismuth wrote, in a Tweet thread: “Folks know the settlement likely result in sweeping civil immunity and that this is the last game in town for any claims against the Sacklers. Marshall Huebner [the attorney representing Purdue Pharma] himself has said that, with this settlement, the Sacklers want to be done with ‘this chapter, forever.’”

The breadth and scope of this bankruptcy proceeding – and its likely outcome (extensive releases, with no admission of responsibility) – is a sufficient basis for public interest and anger,” Bismuth continued on Twitter. “People are not naïve: they know the likelihood of criminal prosecution is low.”

• In Charleston, West Virginia, a similar courtroom drama is playing out with huge potential consequences. As Courtney Hessler, the crime and police reporter for the Herald-Dispatch, described it: Huntington and Cabell County are the in the midst of a trial for a case in which they accuse [the “Big Three” drug wholesalers] of fueling the opioid crisis. Hessler has written more than 70 news stories covering the ongoing trial.

“Drug distributors AmerisourceBergen, Cardinal Health and McKesson are at the center of a trial in Charleston after they were accused by Cabell County and Huntington of fueling opioid abuse by shipping 127.9 million opiate dosage units into the county from 2006-14 before users were forced to turn to illicit drugs when the number of pills shipped dropped,” Hessler wrote in her June 15 story, summarizing the case.

In turn, the lawyers representing the three drug distributors blamed the U.S. Drug Enforcement Administration and an increase in the numbers of doctors’ prescriptions, combined with West Virginians’ history of poor health as the “culprit,” according to Hessler’s reporting.

In the trial, the lawyers for the three drug distributors have attempted to discredit the prosecution witnesses, including Katherine Keyes, an epidemiologist, who had testified that the tens of million pills shipped into the county from 2006-2014 were a substantial factor in fueling the opioid epidemic in West Virginia, specifically that the increase of prescription opioids led to the increase in the use of heroin.

In their cross-examination of Keyes, Hessler wrote, the attorneys for the drug distributors attempted “to disprove prescription opioids being a gateway to heroin abuses.”

To quote WPRO’s Steve Klamkin, “Really?”

Making the connections
Dr. Nancy Young, executive director of Children and Family Futures, a child abuse and neglect prevention group that focuses on rebuilding families affected by trauma, substance use and mental health disorders, testified at the trial on Wednesday, June 16, as reported by Hessler.

Young testified about the damaging consequences of the opioid epidemic on families, beyond the perverse metrics of overdose deaths. In West Virginia, from 2006-2016, there was an increase from 970 children to 2,171 children removed due to parental substance use. From 2011-2016, approximately 80 percent of those cases were filed due to substance abuse, Young testified, as reported by Hessler.

Further, Young testified that the U.S. removes about 50,000 infants a year from their homes, according to Hessler’s reporting. Beginning around 2013, there was a flip from children being placed with strangers to placement with grandparents. Another trend identified by Young was an increase in the number of orphans, a situation the country has not seen since the Industrial Revolution, Hessler reported.

The takeaways
What happens in the courtrooms in White Plains, N.Y., and Charleston, W.V., may seem far removed from Rhode Island, but everyday there are constant reminders of the high cost that addictive prescription painkillers have played in the lives of so many families in our state – and the ongoing struggles by so many in long-term recovery.

Take the story that Ashley Cullinane, the education advocate and weekend evening anchor at NBC10, shared on her Twitter feed on Friday, June 18. She wrote: “My father spent most of my childhood addicted, in jail & eventually abandoned my mother and I.”

If today is tough for you, Cullinane continued, “Remember no FAMILY is perfect. Cherish those who have stepped up, raised you, and love you unconditionally -- we’re lucky to have them. Happy #FathersDay to all.”

Cullinane wrote further: “To the families who hurt a little or a lot on Father’s Day – I am with you, more than ever. To the dads struggling and trying to better themselves for their family, I’m also with you. Don’t give up. It will be worth it in the end.”

One person who has never given up is Jonathan Goyer, long-time recovery community advocate. Goyer posted on Facebook on June 17 the following message: “Today marks eight years of continuous sobriety for me. The opportunities I have in my life today are a result of my having quit drugs and alcohol, and they continue to blow my mind on a daily basis. I appreciate all the support I’ve received on this incredible journey of becoming a better me.”

One of the biggest problems with the war on drugs has been the legal strategy in which alleged drug crimes have been prosecuted, under the mistaken philosophy arresting people and putting people in jail would serve as an effective deterrent. That pendulum appears to be shifting here in Rhode Island. In the R.I House, legislators took a major step forward on Friday, June 18, approving legislation that reclassified the crime of simple drug possession from a felony to a misdemeanor. [In testimony on the House floor in support of the legislation, Rep. Leonela Felix shared her personal story of being given a second chance in life through a drug diversion program.]

The change in the law was strongly supported by R.I. Attorney General Peter Neronha. As ConvergenceRI reported in an interview with Neronha, reducing charged from a felony to a misdemeanor can have big ramifications. [See link below to ConvergenceRI story, “Where state drug policy and gun violence policy converge.”]

“I’ve had [proposed] legislation now for three years that would reclassify possession of small amounts of any kind of narcotic as a misdemeanor, rather than a felony. Why? I just don’t think that it is felony conduct. A felony to me is a serious crime that warrants a serious response. Misdemeanor conduct is criminal activity that has an underlying cause that needs to be addressed – and doesn’t need to be addressed with prison time.”

“If you are being charged with a felony, most of the time, jail ought to be a potential part of punishment. Doesn’t mean it should be in every case. I don’t think that jail should ever be on the table for somebody who possesses a small amount of drugs for personal use. And the facts bear that out.”

The high cost of drugs
This week, the R.I. General Assembly will consider and then vote on the Funding Year 2022 state budget, which includes some $13.1 billion in spending.

What is not contained in the proposed budget, however, which was approved by the R.I. House Finance Committee, was any apparent recognition that the number-one factor in the rise of health care costs in Rhode Island is the escalating prices of prescription drugs across all insurance plans – Medicare, Medicaid, and commercial insurance – in 2018 and 2019, according to analyses conducted under the auspices of the R.I. Office of the Health Insurance Commissioner.

It was big news on Wednesday, June 16, when 70-year-old Marc Archambault of Wakefield, received the world’s first transfusion of the recently FAD-approved drug, Aduhelm [aducanumab], developed by Biogen.

The drug, administered by Dr. Stephen Salloway at Butler Hospital’s Memory and Aging Program, seeks to help slow the progression of Alzheimer’s disease in patients diagnosed with mild cognitive impairment or early stages of the disease.

Some 500,000 Americans are diagnosed with Alzheimer’s each year. The cost of infusing the new drug is reported to be about $56,000 a year per person, with Medicare copays reaching as much as $11,500, according to a story by reporter Cassandra Webb.

A study published by the Kaiser Family Foundation calculated that if 500,000 of the 1 million to 2 million individuals seen as the immediate market received the drug, total spending by Medicare and the patients could reach $29 billion in one year, according to a story written by reporter Harold Brubaker in The Philadelphia Inquirer on Wednesday, June 16.

What investing in recovery means?
The ongoing efforts by R.I. Sen. Josh Miller to push for legalization of recreational use of marijuana [what some insist on calling the more politically correct term, cannabis] appears to be headed for a vote in the R.I. Senate this week, although its path forward appears to be blocked by R.I. House Speaker Joseph Shekarchi. [See link below to ConvergenceRI story, “Are you ready for the next episode of RI Vice?”]

Some of the urgency in enacting such legislation appears to have been removed because of the largesse of federal dollars flowing into Rhode Island. The benefits of creating new sources of revenue needed to address structural budget issues has become a dream deferred.

Still, there has been tremendous resistance mounted by anti-tax coalitions to attempt to prevent any new taxes from being introduced as part of this year’s budget considerations – and the reluctance of Gov. Dan McKee to support or endorse any new taxes, whether placed on the wealthy in Rhode Island or on sugary drinks.

One of the biggest omissions in the FY 2022 state budget is the failure to invest in the creation of a new public health laboratory for Rhode Island. Initially, the proposal to build a new laboratory was scheduled to be part of series of bond issues brought before the voters in February of 2021 – but it was dropped in a decision made by former Gov. Gina Raimondo.

The need for such a new public health laboratory was demonstrated time and again by the increasing demands placed upon the public health infrastructure during the coronavirus pandemic.

In recent weeks, there was talk that the public health laboratory, to be built on the former Route 195 land, would be resurrected in the proposed FY 2022 budget.

“The budget that the House Finance Committee released last week does not include funding to build a new State Lab,” Annemarie Beardsworth, spokesperson for the R.I. Department of Health, wrote to ConvergenceRI in an email. “The Governor’s Office, the R.I. Department of Health, the R.I. Department of Administration and CommerceRI will continue to work with the General Assembly on a plan for a new lab, including a location for the site and a source of funding.”

Translated, there do not appear to be enough champions to push through the funding for such an infrastructure investment, despite the glaring need.

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