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Simmons firm filed lawsuits against pharmaceutical manufacturers on behalf of New York counties over opioid addiction

By Heather Isringhausen Gvillo | Mar 13, 2017

The Simmons Hanly Conroy firm has filed several lawsuits on behalf of New York counties against pharmaceutical manufacturers and physicians, alleging the counties have spent millions of dollars fighting an opioid drug epidemic they say was caused by aggressive marketing.

“As a direct and foreseeable consequence of Defendants’ wrongful conduct, Plaintiff has been required to spend millions of dollars each year in its efforts to combat the public nuisance created by Defendants’ deceptive marketing campaign,” the suits state.

The Simmons firm, based in Alton, has built its business on asbestos litigation. It filed its most recent suits on behalf of Erie County in Buffalo on the state's western border and Broome County in Binghamton in south central last month in those respective state courts. 

The firm filed a similar lawsuit on behalf of Suffolk County (Riverhead) in August.

The 75-page lawsuits included counts alleging unjust enrichment, fraud, violation of New York social services lLaw, public nuisance, false advertising – New York general business law, and deceptive acts and practices – New York general business law.

The counties are represented by Paul Hanly, Jayne Conroy, Andrea Bierstein and Thomas I. Sheridan III of New York and Sarah Burns of Alton.

The Simmons Firm previously had ties to an asbestos corruption investigation of former New York State Assembly Speaker Sheldon Silver, in which Silver was accused of steering state funds to Dr. Robert Taub, who headed a mesothelioma research facility at Columbia University until Silver’s arrest.

In return, Taub referred potential asbestos claimants to Silver, who was “of counsel” at New York asbestos firm Weitz & Luxenberg.

Jurors found that Silver and Dr. Richard Taub engaged in quid pro quo and Silver was convicted of fraud, extortion and money laundering.

Greg Kirkland, former chief executive of the Simmons firm, testified in the case in November 2015, saying Taub referred patients to the Simmons firm while the Simmons Foundation gave money for Taub’s cancer research.

Following the testimony, Silver sought a new trial, objecting to “irrelevant and prejudicial evidence suggesting that Dr. Taub exchanged patient referrals for donations with the Simmons Foundation.”

Silver’s lawyers wrote that the Simmons foundation donated $3,150,000 to Taub’s research center.

The pharma suits were filed against defendants Purdue Pharma LP, Purdue Pharma Inc., The Purdue Frederick Company Inc., Teva Pharmaceuticals USA Inc., Cephalon Inc., Johnson & Johnson, Janssen Pharmaceuticals Inc., Ortho-McNeil-Janssen Pharmaceuticals Inc., Janssen Pharmaceutica Inc., Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Russell Portenoy, Perry Fine, Scott Fishman, Lynn Webster.

Portenoy, of New York, Fine, of Utah, Fishman, of California, and Webster, of Utah, are all doctors sued for allegedly being “instrumental in promoting opioids for sale and distribution …”

Opioids include brand-name drugs like OxyContin and Percocet and generics like oxycodone and hydrocodone.

The lawsuit explains that these opioids possess properties similar to opium and heroin and are highly addictive and dangerous. They are regulated by the Food and Drug Administration as controlled substances.

The suit says opioids are effective in treating short-term post-surgical and trauma-related pain and for palliative end-of-life care.

However, the plaintiffs allege the defendants have “manufactured, promoted, and marketed opioids for the management of pain by misleading consumers and medical providers through misrepresentations or omissions regarding the appropriate use, risks, and safety of opioids.”

The plaintiffs claim opioids are too addictive and too debilitating for long-term use for chronic pain lasting three months or longer.

The drugs’ effectiveness wanes with prolonged use, requiring increases in doses to achieve pain relief and increasing the risk of addiction.

“Despite the foregoing knowledge,” the suits state, “in order to expand the market for opioids and realize blockbuster profits, Defendants sought to create a false perception of the safety and efficacy of opioids in the minds of medical professionals and members of the public that would encourage the use of opioids for longer periods of time and to treat a wider range of problems, including such common aches as lower back pain, arthritis and headaches.”

The counties allege that in the late 1990s, pharmaceutical manufacturers and physicians coordinated a sophisticated “and highly deceptive” marketing campaign. They became more aggressive about 2006.

The plaintiffs also allege the defendants misrepresented the dangers of long-term opioid use and even encouraged long-term use.

Their marketing campaigns aimed to convince doctors, patients and others that the benefits of using opioids outweighed the risks and that they were safe for most patients to use, the suits state.

"Doctors are the gatekeepers for all prescription drugs so, not surprisingly, Defendants focused the bulk of their marketing efforts, and their multi-million dollar budges, on the professional medical community," the suits state.

The counties allege opioid addiction has become an epidemic throughout the country with 78 deaths per day from an overdose nationally.

There have been 12 deaths caused by prescription opioid overdose in 2014 in Broome County alone, plaintiffs claim.

They also claim that in May 2016, the Erie County Commissioner of Health reported that there were 256 opioid-related overdose deaths, up from 127 in 2014.

The suits state that deaths from prescription opioids, as well as prescription opioid use, have quadrupled since 1999.

In 2010, 254 million prescriptions for opioids were filled in the U.S. – “enough to medicate every adult in America around the clock for a month,” the suit states.

The counties allege the opioid campaign has been “extremely” profitable for the defendants. In 2012, opioids generated $8 billion in revenue for the drug companies.

The counties specifically argue that the rising number of people addicted to opioids has led to “significantly increased’ health care costs and social problems within their counties.

"Rather than honestly disclose the risk of addiction, Defendants attempted to portray those who were concerned about addiction as callously denying treatment to suffering patients. To increase pressure on doctors to prescribe chronic opioid therapy, Defendants turned the tables: they suggested that doctors who failed to treat their patients’ chronic pains with opioids were failing their patients and risking professional discipline, while doctors who relieved their pain using long-term opioid therapy were following the compassionate (and professionally less risky) approach," the suits state.

The plaintiffs seek compensatory damages in an unspecified amount; treble damages, penalties and costs pursuant to the Social Services Law; treble damages and atorneys’ fees pursuant to General Business Law; punitive damages; interest; costs and disbursements; and all other relief the court deems just.

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