With $ billions but no apologies or remorse, notorious opioid bankruptcy settles

pewopioidharmsfigure-300x238In a landmark opioid painkiller case, a federal bankruptcy judge has approved what potentially may be a $10-billion settlement.  It included a plutocratic clan winning sweeping protections from further civil lawsuits by pledging to fork over $4.5 billion from their family fortunes.

Despite the seeming bounty in this case, the Purdue Pharmaceutical payout also may go in the legal books as unacceptably mean and little.

Robert Drain — the jurist who presided over the dissolution of Purdue, the enterprise that enriched the Sackler family in unimaginable fashion through the peddling of powerful prescription pain drugs like OxyContin — not only conceded the company’s bankruptcy was a bitter end. He also spelled out that term, B-I-T-T-E-R, letter for letter for the court record.

He commented on the Sackler family’ 100% refusal to accept any blame for their roles in a public health catastrophe that experts estimate has killed 500,000 Americans in a decade, debilitated countless numbers of others with addiction and serious health problems, savaged communities and regions of the country, and cost taxpayers $2 trillion.

The opioid abuse and drug overdose crisis has only worsened due to the coronavirus pandemic, killing tens of thousands in this country last year. (See Pew illustration above, with endnotes-citations available by clicking here).

A “forced apology is not really an apology, so we will have to live without one,” the judge said from the bench.

It is unclear whether the settlement will be appealed and if more than 3,000 plaintiffs — state and local governments, Indian tribes, and others — will receive desperately needed compensation for the destruction caused by Purdue and OxyContin.

Purdue as a villainous pathbreaker

The drug maker became a target for vilification because it was a pathbreaker in the relentless and deceptive manufacture, sales, and marketing of prescription opioids. Those medications over time have opened the door to synthetic versions, like cheap-to-make and lethally potent fentanyl, as well as dangerous street narcotics. Purdue, along with others in Big Pharma’s supply chain, showered parts of the country with millions of painkiller pills — far more than common sense said should be prescribed or could be safely and appropriately consumed.

Purdue and its top executives pleaded to federal criminal charges once before, paying hundreds of millions in fines in 2007 to resolve accusations that they deceived patients, doctors, and regulators about OxyContin and its risks for addiction. The company apparently was undeterred by that case, which then was one of the largest to date.

Instead, Purdue and the Sacklers — along with an array of Big Pharma firms — became the subjects of a crush of lawsuits that officials in the federal judiciary feared could swamp U.S. courts. As occurred with Big Tobacco cases, court administrators consolidated the opioid lawsuits, especially those involving governments, and put them under the jurisdiction of a federal district judge in Cleveland to try to strike a giant, universal settlement.

The Sacklers, however, balked. They agreed early on to a small deal or two. Then they staked out a legal strategy that infuriated many. They paid a $30 fee to file for bankruptcy for their company — but not for themselves. They hand-picked Drain as the judge for the bankruptcy case. And because federal courts have embraced the idea that corporations as entities can be like human beings, the issue swiftly became what to do with Purdue the corporation, and maybe not what happened to those with claims of victimization by it. Drain, the only federal bankruptcy judge sitting in White Plains, N.Y., was known for zipping corporate matters along to the benefit of struggling companies.

Deal-making without apology or remorse

The Sacklers also hit him with a gigantic stumbling block to his expedient approach. They insisted on a sweeping civil immunity for themselves, saying that the Purdue bankruptcy case otherwise made no sense. He resisted. But he soon assented to this highly unusual protection. Critics assailed his decision, arguing that if the clan wanted protection from what could be years of civil lawsuits, the Sacklers should file personal bankruptcy.

Plaintiffs in the case also expressed growing anger as the Sacklers pulled money out of Purdue. As the judge would concede from the bench, the family plundered perhaps billions of dollars from the business and stashed it in overseas accounts (hmm, where was the Internal Revenue Service, one might ask …) The Sacklers dickered over the settlement, upping the ante, and insisting that they would walk away unless plaintiffs approved a deal.

Purdue, the company, pleaded to yet more federal charges and issued an apology. Most of the plaintiffs decided that they should take the Sackler offer.

Victims of the nightmare, who may be in line to receive anywhere from $3,500 to $48,000 to deal with how OxyContin upended their lives, have denounced the deal, especially the absence of justice in it — especially the lack of apology or remorse by the Sacklers. Dissenters among the plaintiffs, including the District of Columbia, are mulling their next legal steps.

Because the case has so focused on money, it may be worth noting that the settlement, if it finally goes through, will be dribbled out for years, starting with a $500 million payment. Purdue, the Sackler family piggybank, no longer exists, and they have zero control of it. Whatever it and its products generate financially will go to pay the billions promised in the bankruptcy settlement. They money is supposed to go to treating the addicted and preventing yet more harms from opioid abuse and drug overdoses.

Investigators have estimated that the Sacklers, including with the money they extracted most recently from the company that family members headed and served as directors of, have a fortune of $11 billion or $12 billion. That monumental sum represents the assets of a few dozen family members. Because the Sacklers and the bankruptcy court worked out a forgiving payment plan, experts estimate that the clan’s holdings by the time the settlement is paid off could grow by yet another billion or two or three.

Hey, big money means never having to say your sorry (to paraphrase the crocheted pillow saying about love …)

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them by dangerous drugs.

The opioid crisis, which we now must tackle in the most aggressive fashion possible, took time to develop, fostered by Big Pharma, doctors, nurses, hospitals, insurers, and others in health care. The wrongdoers must be held accountable, and the tens of millions who have been injured must find care — and justice from the injuries they and their loved ones suffer.

Books already are hitting the shelves about the Sacklers and the ignominy surrounding them and their company. Under the bankruptcy deal, tens of millions of pages of records on Purdue and OxyContin will become public and will be made available in a public archive. Will the sustained furor about this mess, combined with the mass of materials becoming available, unearth something that might bring elusive justice to this part of the opioid abuse and drug overdose catastrophe? The Sacklers, especially with friends in high places, have never faced criminal charges in the opioid crisis, and they are not protected from what, no doubt, would be an onerous case for prosecutors to bring. Will the digging stop, though?

We have monumental work ahead, though, to quash one of the nation’s leading public health calamities, to care for those harmed by it — and to ensure the likes of it never occurs again.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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