AG locked in prolonged battle with drug companies 

  • FILE - This Feb. 19, 2013, file photo, shows OxyContin pills arranged for a photo at a pharmacy in Montpelier, Vt. Prescription painkillers should not be a first-choice for treating common ailments like back pain and arthritis, according to new federal guidelines designed to reshape how doctors prescribe drugs like OxyContin and Vicodin. Amid an epidemic of addiction and abuse tied to these powerful opioids drugs, the CDC is urging general doctors to try physical therapy, exercise and over-the-counter pain medications before turning to painkillers for chronic pain. (AP Photo/Toby Talbot, File)

Monitor staff
Published: 7/14/2016 6:53:34 PM

One year after the state attorney general’s office filed subpoenas against five large drug companies to discover how addictive painkillers have been marketed in the state, the pharmaceutical giants have handed over nothing more than legal briefs.

“They’ve yet to produce one piece of paper,” said Assistant Attorney General James Boffetti, who is heading up the state’s investigation against the drug companies.

Boffetti’s three-person team is badly outnumbered by lawyers representing the pharmaceutical companies as they fight to get access to internal company documents. The attorney general’s office announced last month it was narrowing its probe to just look at Purdue Pharma LP, which manufactures the opioid OxyContin.

In a lawsuit filed in Merrimack County Superior Court, the attorney general’s office accuses Purdue of engaging in deceptive marketing, misrepresenting the “risks and benefits of long-term opioid use for chronic pain.”

“Purdue sales representatives continue to make sales visits to New Hampshire doctors during which they misleadingly portray or omit the risk of addiction,” wrote Boffetti, adding that the company made 217 marketing visits to the state in 2014, the most recent year with available data.

Boffetti characterizes the legal fight as a “David and Goliath” situation. The state – without any outside assistance – has three lawyers working on the investigation. The pharmaceutical companies have 19.

“They have a virtual army of lawyers, from New Hampshire and outside,” said Boffetti, who is charge of the state investigation. “It’s not just their lawyers, they have the resources of their entire law offices.”

Boffetti’s old boss is one of those lawyers. Former New Hampshire attorney general Michael Delaney is representing Endo Pharmaceuticals Inc., which recently settled with the state of New York over deceptive marketing practices of an opioid it manufactured, Opana ER.

Delaney served as attorney general in New Hampshire from 2009 to 2013.

Boffetti said his office needs help to sort through reams of documents if they come in.

“The volume of stuff to come in will be enormous,” he said.

Boffetti and his team are after internal documents from Purdue Pharma they hope will shed light on how prescription opioids were marketed to doctors and health providers in New Hampshire.

The current legal fight is whether the attorney general’s office can hire outside help.

All of the drug companies have refused to turn over any internal documents, as long as the attorney general’s office works with hired counsel – Cohen Milstein – a firm that has litigated similar cases against the pharmaceutical industry.

Lawyers representing the drug companies have argued Cohen Milstein has an inherent bias against them because it will only get paid if the state takes future legal action against the drug companies. A Merrimack County Superior Court judge recently sided with the state, but the drug companies are refusing to budge.

Lawyers have appealed the decision to the state Supreme Court and argue they should not have to turn over any internal documents until that decision is handed down.

“They don’t want us to know, that’s for sure,” Boffetti said. “We can have no resources; they’ll do everything they can to prevent us from seeing the documents.”

Elsewhere, light is starting to shine on Purdue’s marketing practices. An ongoing Los Angeles Times investigation into Purdue Pharma revealed the company marketed OxyContin as a pill to provide users with 12 hours of pain relief, despite the company’s own studies that showed the drug wore off hours early in many participants, leaving withdrawal symptoms and cravings.

The Times investigation found that Purdue knew OxyContin didn’t last 12 hours before the drug went onto the market.

Nevertheless, the drug maker not only stuck to their claim that the 12-hour window worked, it advised doctors to prescribe stronger doses of the drug if patients complained they weren’t getting the full window of relief, the Times reported.

Furthermore, the paper’s investigation found that Purdue knew of doctors who were overprescribing vast amounts of OxyContin potentially headed for the black market – and frequently did not share that information with law enforcement or cut off the supply.

Purdue Pharma keeps its own database of over 1,800 doctors it suspects are overprescribing, but does not alert law enforcement or medical authorities.

Boffetti said he can’t comment on whether similar overprescribing of OxyContin has gone on in New Hampshire, as the investigation is ongoing. But he said getting internal company documents will be an important piece of that.

“We need to get to the bottom of what they did so we can figure out if they violated the law,” he said.

These types of accusations aren’t new to Purdue. The Connecticut-based company agreed in 2007 to pay $600 million in federal fines after admitting it misled doctors and patients by understating OxyContin’s addictiveness. A federal prosecutor said at the time that the marketing had resulted in rising crime rates, teenage drug addiction and death, among other public health concerns.

Annual revenue at Purdue is about $3 billion, mostly due to OxyContin sales, according to Forbes. The company has made more than $35 billion since releasing OxyContin in 1995.

(Ella Nilsen is at 369-3322, or on Twitter @ella_nilsen.)

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