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OxyContin Maker's Records Reveal Deceit in Deal with Attorneys General, Justice Department

The attorneys general for 27 states — including Tennessee — inked a deal a decade ago that allowed OxyContin maker Purdue Pharma to police itself using guidelines set by a group the firm secretly funded, records show.

In that decade, thousands of Tennesseans have died from overdoses linked to OxyContin. Heroin cartels have pushed their drugs in communities across Tennessee as cheap alternatives to OxyContin. The state’s jails and prisons became packed with OxyContin addicts.

Dozens of prescribers have lost their medical licenses and gone to prison and hundreds of thousands of Tennesseans are now addicted to OxyContin, an examination of federal and state court records and regulatory documents shows.

Purdue Pharma spent that same decade, newly revealed records show, not only failing to police itself but pushing its sales staff to put OxyContin in the hands of cash-paying patients at pill mills across Tennessee — and documenting it in company records all the while.

Devil in the agreement details?

It would take seven years, though, for the Tennessee attorney general’s office to check up on Purdue, a USA TODAY NETWORK - Tennessee examination of records showed. It would take three more years and a new administration in that office to accuse the OxyContin maker of deliberately deceiving 27 state attorneys general and the Justice Department in 2007 — using Purdue’s own records.

Tennessee Attorney General Herbert H. Slatery III is now suing Purdue in Knox County Circuit Court for, among other things, violating his predecessor’s 2007 agreement with Purdue that state prosecutors recently criticized as ineffectual in curbing the opioid epidemic.

USA TODAY NETWORK - Tennessee examined the 2007 agreement, Food and Drug Administration records related to it and Purdue’s internal documents this week after Purdue dropped its effort to keep its records under seal. The News Sentinel, part of the USA TODAY NETWORK, and the Tennessee Coalition for Open Government had gone to court to challenge the sealing of the records.

That examination showed the American Pain Society — now exposed as an advocacy group funded by Purdue and other opioid makers — influenced the settlement agreement and the FDA regulations upon which it was based.

Deal allowed Purdue to set up own system to police itself

The 2007 agreement allowed Purdue to follow the American Pain Society’s “guidelines” for treating pain with opioids, including OxyContin, when marketing the deadly opioid to prescribers.

“In its promotion and marketing of OxyContin, Purdue shall not misrepresent, in any written or oral claim relating to OxyContin, that its sales, medical or research personnel have experience or credentials or are engaging in research activities if they do not in fact possess such credentials or experience, or are not engaging in such activities,” the agreement stated.

Purdue’s internal records show the firm not only helped fund the American Pain Society — which spread misinformation about the addictive properties of OxyContin and other opioids under the guise of patient advocacy — but paid medical providers, some tied to deadly pill mills, to give lectures under the group’s umbrella.

The agreement — signed by former Attorney General Robert Cooper Jr. on behalf of Tennessee taxpayers — allowed Purdue to set up its own system to police itself.

Don't ask, don't tell

It did not require Purdue to turn over names of suspected drug-dealing prescribers or any other records, including notes from the 87 Purdue sales representatives who made more than 300,000 sales calls pushing OxyContin to medical providers in Tennessee.

Instead, the agreement required Purdue to document — internally — evidence of pill mills and drug-dealing providers, investigate those cases — internally — and provide the attorney general in each state a “summary” of statistics for three years.

The report “shall not include the names of any specific health care professionals,” the agreement stated.

The settlement did not require Purdue to turn over any other records to prove it was policing its sales force — unless an attorney general had enough proof of violations to support an administrative subpoena.

Call notes and other Purdue records included in Slatery’s lawsuit show Purdue sales representatives amped up their calls to prescribers suspected of running pill mills and won bonuses for doing so — beginning weeks after the 2007 agreement was signed.

“No sales incentive (bonus) program for sales of OxyContin shall allow incentive credit to be earned for a Health Care Professional who has been identified through the OxyContin Abuse and Diversion Detection Program as one upon whom sales representatives shall not call,” the agreement stated.

Internal records show Purdue executives created a “Toppers Club” for top OxyContin sales staffers, who could earn bonuses and trips for pushing more of the drug, and “savings coupons” used by OxyContin addicts to pay for their prescriptions.

“In addition, Purdue shall not employ a compensation structure for persons involved in marketing or promoting OxyContin that is based exclusively on the volume of OxyContin sales,” the agreement stated.

Change in leadership

Cooper, a legal counsel to former Gov. Phil Bredesen, was appointed by the state Supreme Court to serve as attorney general in 2006. He joined 26 other state attorneys general in reaching a quick $19.5 million settlement with Purdue after the firm was hit in 2007 by the Justice Department with criminal penalties for lying about OxyContin.

Of that $19.5 million, Tennessee’s share was less than $1 million. Nearly half of that went to Cooper’s office. Less than $160,000 went into the state’s general fund. None of it funded addiction recovery.

Cooper’s office did not seek an investigative subpoena of Purdue’s internal records until September 2014 — at the same time Slatery, legal counsel to Gov. Bill Haslam, had been approved to replace Cooper. Slatery was sworn into office Oct. 1, 2014.

Purdue turned over its records pursuant to that subpoena in January 2015 — after Slatery’s office agreed to keep most of those documents confidential. Those records contained evidence against pill mill operators that were under federal probe at that time.

U.S. Attorney Doug Overbey, whose office is helming that ongoing prosecution, has declined to answer questions, including whether Slatery notified prosecutors of the evidence contained in Purdue’s records.

The confidentiality agreement gave Slatery’s office authority to pass along that evidence to “law enforcement” — only if law enforcers also agreed to keep it secret.

In its 274-page complaint accusing Purdue of violating the agreement, however, the attorney general's office spelled out the alleged violations in detail, citing Purdue's subpoenaed records, including scores of “call notes” made by OxyContin sales representatives. It was this document that was made public after the News Sentinel and TCOG’s legal challenge.

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