Biotech & Pharma
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Exclusive analysis of biotech, pharma, and the life sciences
By and Dec. 19, 2021
Your neighbor’s kid is still sitting in jail for selling heroin — to people who were initially hooked by OxyContin. Your friend who lost both her brother and niece to addiction fueled by the false notion that OxyContin was virtually nonaddictive still struggles with misplaced guilt over their tragic deaths. Your local support group leader has to pick and choose which funerals to attend because there are so many: more than 1 million families have now lost loved ones to overdose death since 1996, the year OxyContin was introduced.
So many of these tragedies may be traced back to one family, one company, one product and one lie: members of the Sackler family, owners of Purdue Pharma, the company that makes and promoted OxyContin as a virtually non-addictive opioid painkiller. And, until now, they have seemed immune to the consequences.
But that may change. On Thursday, U.S. District Court Judge Colleen McMahon reversed a multibillion-dollar bankruptcy settlement plan that would have allowed members of the Sackler family to escape civil liability while retaining most of their wealth. It was a startling rebuke to Judge Robert Drain, who approved the plan in September after the company’s lawyers employed a venue-shopping loophole to land in his court.
Appeals are already in the works. But bankruptcy court doesn’t have to be the last stand for justice. Another important character entered the Sackler saga on Thursday. A lawyer, Philip R. Sellinger, swore an oath and started work as the new U.S. Attorney for the District of New Jersey, the federal office responsible for investigating the Sacklers.
In late 2020, during the last gasps of the Trump administration, Purdue pled guilty in a Newark, N.J., court to defrauding federal health agencies and violating anti-kickback laws. The Department of Justice trumpeted the company’s $8.3 billion fine — which was a fiction because the company was already in bankruptcy. While the DOJ also wrangled a $225 million civil settlement from the Sacklers, it failed to charge any human beings for their role in the company’s crimes.
We — a former longtime Department of Justice fraud chief and a Virginia journalist who has covered the epidemic for a decade — fear another hollow corporate sentencing for Purdue Pharma. The 2020 deal didn’t foreclose criminal prosecution of Sackler family members. We stand with thousands of Americans who believe the Sacklers ought to endure the weight of personal accountability for the carnage they knowingly caused.
These Sacklers don’t deserve a pass — again.
Fifteen years ago, career prosecutors in western Virginia uncovered so many examples of fraud at Purdue that it recommended a host of felony charges against the company and its top three executives — from money laundering, conspiracy, and misbranding to interstate wire and mail fraud.
The evidence of callous greed was chilling. The company had fired employees who tried to blow the whistle on its crimes and maneuvered to have reporters who were onto the story fired or removed from their beats. Sales reps were encouraged to allow doctors to believe — falsely — that morphine was stronger than OxyContin when executives knew the opposite was true. The company’s medical director, Dr. Paul Goldenheim, lied to Congress when he testified that executives hadn’t known until 2000 that OxyContin was being widely abused: in fact, they’d become aware of addiction-related abuse shortly after the drug’s introduction in 1996.
A trial would have exposed the company’s OxyContin profits to forfeiture or prompted one of the executives to expose the magnitude of OxyContin scion Richard Sackler’s participation in the admitted crimes.
One of us (P.P.) had a front row seat to that miscarriage of justice, having overseen the federal Department of Justice’s Fraud Section’s review of the investigation. But political appointees at the department, apparently swayed by Purdue’s well-connected lawyers, including Mary Jo White and Rudy Giuliani, refused to approve felony charges for executives, letting Purdue off the hook with a $600 million fine.
Purdue had operated an ongoing criminal scheme, causing a massive pileup of deaths. The evidence against it was overwhelming, yet in the end political leaders at the Department of Justice chickened out, allowing only relatively minor charges.
After sentencing, we now know that the Sacklers and Purdue doubled down on their marketing. Years later, Richard Sackler admitted that he never even bothered to read the entire 2007 document that prosecutors outlined to guide Purdue’s future behavior. As Judge McMahon wrote in her ruling: “[I]f Purdue’s admissions in its 2020 Plea Agreement are believed, this purported acceptance of responsibility was a charade, and the oversight mechanisms built into the settlements were a conspicuous failure.”
Purdue hired consultants at McKinsey & Co., to advise them to “turbocharge” sales, concentrating on well-known pill mill operators, pushing the highest-dosage pills, and banning together with other opioid makers to pull end-runs around FDA regulators. McKinsey even suggested that Purdue offer to offset overdose deaths with client rebates. These death discounts never came to pass, but the damage was done.
Starting in 2015, American life expectancy began dropping for the first time since World War I, with opioid overdoses contributing the majority of deaths. Economists have since shown that overdose rates from heroin and fentanyl are significantly lower in the handful of states that were not privy to the company’s full OxyContin-as-cure-all marketing push. And a Gallup poll published last month reported that nearly one-third of Americans report struggling with drug addiction in their families.
When “Dopesick,” the book one of us (B.M.) published in 2018 was made into a television series airing on Hulu this fall, the show’s creator, Danny Strong, called it “the trial that Purdue Pharma and the Sackler family never had.”
Our country is not supposed to rely on books and movies for justice. We pay taxes and give the Department of Justice legal authority to enforce the law.
A few weeks ago, activists and families of the dead traveled from to Washington, D.C., from as far away as Massachusetts, Florida, and Hawaii to gather in front of Attorney General Merrick Garland’s office to urge the DOJ to do its J-O-B and call for a special prosecutor’s investigation of the Sacklers.
One of the most telling exchanges of the day came at breakfast, by way of a janitor who worked at the Fairfield Marriot where the protesters were staying. When he learned why the disparate group traveled to D.C. with poster-sized pictures of their dead kids, Dion Wills burst into tears. He had lost both a brother and a sister to OxyContin overdose 18 years ago.
“I’m 60 years old and still crying about it like it happened yesterday,” Wills told Massachusetts support-group leader Joanne Peterson, who mourns two relatives and nearly lost her son to addiction. Family members of those who are addicted to opioids still beg Peterson to meet them in dark coffee shops several towns away “all because they wrongly equate this illness and this hoax of the Sacklers to be a moral failing,” Peterson said.
Judge McMahon’s ruling is a win for accountability, but it may not endure. And the federal bankruptcy code does not account for criminal behavior. It’s not too late for the DOJ to right its previous wrong.
President Biden’s Justice Department must correct the errors and timidity of its predecessors. And Sellinger, the newly confirmed New Jersey U. S. Attorney, could be the perfect Special Prosecutor.
While the billionaire Sacklers may spend this holiday season ruminating on the ignominy of having their name removed from New York’s Metropolitan Museum of Art and other museums they showered with blood money, a million families across America will have to endure it without their children, spouses, parents, and friends whose lives were either eviscerated or cut short by opioids. It is shameful that, at least for now, they must live without justice, too.
Paul Pelletier, a Washington, D.C.-based lawyer, is the former deputy chief of the criminal fraud division of the U.S. Department of Justice. Beth Macy is the author of “Dopesick: Dealers, Doctors, and the Drug Company That Addicted America,” (Little, Brown & Co., 2018) and a cowriter and executive producer on the Hulu television series inspired by her book.
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Biotech & Pharma