Why TCOG, News Sentinel Fighting to Unseal Purdue Pharma's OxyContin Sales Secrets
In 2007, the state of Tennessee and 25 other states reached a $19.5 million settlement agreement with OxyContin maker Purdue Pharma, who they alleged was violating consumer laws in the marketing of their cash cow opioid drug.
Among other allegations, the states said Purdue engaged in illegal marketing and downplayed the risks of addiction.
Tennessee’s portion of the settlement was about $720,000. Kentucky decided its $500,000 portion was too small, and pulled out of the settlement to pursue its own litigation in state court against Purdue, where they eventually got a $24 million payout.
At the time of the 2007 settlement, an agreed-upon court order was entered against Purdue in a Tennessee court with 22 compliance provisions and signed by then-Tennessee Attorney General Robert Cooper and Director of the Division of Consumer Affairs Mary Clement.
The opioid crisis is putting more women behind bars across the U.S. In Campbell County, Tennessee. many female inmates have cycled in and out of jail. (AP Video) AP Video, Video courtesy Sweat Family, Campbell County Sheriff's Department
Provisions stated that Purdue could not:
Make written or oral claims about OxyContin that were false, misleading or deceptive.
Make misrepresentations with respect to the drug’s potential for abuse addiction or physical dependence.
Tie sales compensation exclusively to volume, along with other restrictions on gifts and payments to doctors and health care professionals.
Provide off-label use information except upon request and had to maintain records of those who asked for such information.
Misrepresent research, as well as research it paid for.
Fast forward 11 years, past the painful and growing public realization of a national opioid addiction crisis. Tennessee is among the states with the worst problems.
More: Revolving door of despair: Drugs land more women behind bars
In May, Tennessee AG Herbert Slatery filed a lawsuit in Knox County Circuit Court, alleging that Purdue Pharma had violated the 2007 court order and the state’s consumer protection laws.
The lawsuit was filed under seal. Slatery noted that Purdue believes some of the information in the 270-page complaint would reveal company secrets.
Slatery also argued that the lawsuit’s seal should expire in 10 days because it is a civil enforcement action by the state on behalf of the public and the complaint involves a matter of “immense public concern.”
I agree, and as executive director of TCOG, I and Jack McElroy, executive editor of the Knoxville News Sentinel, were granted a motion to intervene in the case to oppose any efforts by Purdue to keep the lawsuit and any details in it confidential.
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Shortly thereafter, Purdue Pharma filed its motion for a protective order, arguing many items in the state’s lawsuit should not be open to the public because they are “confidential, proprietary and trade secret information.”
In other words, the state’s evidence that details how Purdue allegedly broke the law are things that Purdue thinks should be confidential because — as they say — if known, they would harm the company “by giving its competitors unfettered access” to insider company information.
Knoxville attorney Rick Hollow is representing us in the case. A hearing on the protective order has been scheduled for 9 a.m. Friday, July 6, in Knox County Circuit Court Division 1.
On the 'inside' with women behind bars
Inmate Michelle Tickle, 38, is photographed in her cell at the Campbell County Jail in Jacksboro, Tenn., Wednesday, April 18, 2018. "I started using drugs when I was 27. When that's all you do for so long and that's all you surround yourself with, it's all you know. I don't know why I keep doing the things I do. I've detoxed hundreds of times. It's going to kill me if I keep getting high. I want to get sober. I do. It's just I need to change everything. I would need a lot of structure in my life. I would love to be sober and working and being a good person in a community. I would love for that." (AP Photo/David Goldman) David Goldman, AP
On the 'inside' with women behind bars
In filing our motion to intervene, we argue “[t]here is a compelling interest by the citizens in the State of Tennessee pertaining to information regarding this issue. Not the least of these concerns is that whatever flows from opioid addiction becomes a matter of critical importance to the fabric of families, cities and counties as well as to taxpayers of the State of Tennessee who will inevitably be asked to, through their tax contributions, to assume the responsibility for the damages and losses suffered by the citizens of this state.”
Purdue promises to put up a fight. And indeed they have done just that in other states — sometimes successfully.
When Kentucky settled in 2015 for $24 million, the attorney general agreed to seal, return or destroy material received during discovery.
A news organization filed to get documents still in state possession, and a Kentucky circuit judge agreed to unseal them. Purdue appealed, and a ruling by the appellate court is pending.
Here in Tennessee, we should demand nothing less than full transparency to the public in this case.
Revolving door of despair
Inmate Crystal French, 38, left, is comforted by cellmate Krystle Sweat, 32, at the Campbell County Jail in Jacksboro, Tenn., Tuesday, March 30, 2018, after French was denied parole the previous day. She won't be eligible again for another year. "I got to know the real me again instead of the addicted-to-drugs person. I'd like to be a productive citizen, not an OD statistic, end up dying on drugs," said French, whose two sons are being raised by her ex-husband. "I am a good person. I know I am. But I want to see that person again." Revolving door of despair
According to the state, three people in Tennessee now die a day in an opioid-related overdose — more than the number of daily traffic fatalities.
Nothing about what started this epidemic, nothing about any company’s involvement, nothing about the state’s enforcement of our laws and a court order should remain secret if we are to have a chance to mend.
The process of justice must take place in the public. There is no room for secrets anymore.
Deborah Fisher is executive director of Tennessee Coalition for Open Government. She can be reached at email@example.com.