Mind and Body

Holding bad corporate actors accountable for their misdeeds

RI AG Neronha scores impressive legal victory – and changes the way the money secured will be spent

Photo by Richard Asinof

R.I. Attorney General Peter Neronha announcing the details of $112 million in settlements from lawsuits against the bad corporate actors involved with the opioid epidemic.

By Richard Asinof
Posted 1/31/22
The legal victory won by RI Attorney General Peter Neronha, holding a number of bad corporate actors accountable for their misdeeds in the opioid epidemic, marks a sea change in how the recovered damages will be spent, instead of being swallowed up into the general fund.
Why did Senate President Ruggierio and House Speaker Shekarchi do a fist bump in front of Secretary Jones, ignoring her presence? Which candidate running for Governor will present a comprehensive plan for how to address recovery initiatives for Rhode Islanders? Will the R.I. General Assembly take up the charge of increasing Medicaid reimbursements for community providers? Should media corporations such as Cumulus, NextStar, and Sinclair provide training for young reporters on the opioid crisis – and perhaps sponsor a screening night for “Dopesick?”
As much as lots of attention was focused on homelessness in November, spurred on in part by the protests led by state Sen. Cynthia Mendes, who is running for Lt. Governor under the R.I. Political Coop flag, the harsh reality is that for many families, homelessness is still a life-and-death struggle on the streets in Woonsocket. According to one social service agency, there are currently some 180 individuals within the city receiving emergency shelter through a variety of programs.
In an article published in the Valley Breeze, Michelle Taylor, vice president of social health services for Community Care Alliance, described the plight of one individual. “We have one guy right now at the drop-in center who, his hands were so red, so cracked, we actually dropped him off at urgent care to be evaluated. They were so full that they turned him away.”
A proposal has been floated to Gov. McKee to turn the state-owned building at 181 Cumberland St. in Woonsocket into a homeless shelter. Under the proposal, the new center would include: emergency shelter for up to 16 individuals: a day-time drop-in center for homeless individuals: a specialized behavioral health team trained in evidence-based practices; access to onsite primary medical care through Thundermist Health Center; access to specialized opioid treatment through CODAC mobile care services; and onsite kitchen services to provide meals for the emergency shelter.
The problem, it seems, is that the proposal has fallen on the deaf ears of Gov. McKee and no response has yet been received.

PROVIDENCE – Katie Mulvaney is an excellent reporter, one of the best at The Providence Journal.

Her recap on deadline of what happened at the news conference on Tuesday, Jan. 25, when R.I. Attorney General Peter Neronha announced a combined $112 million settlement with three drug distributors – McKesson, AmerisourceBergen, and Cardinal Health – and drug manufacturer Johnson & Johnson – was a comprehensive report about the details of the settlements, explaining who got what, when, and how. [See link to ProJo story below, “RI nets $112 million in settlement with opioid manufacturer, distributors. What we know.”

Previously, McKinsey & Co. had settled a lawsuit in February of 2021 for $2.59 million. [See link below to ConvergenceRI story, “The high cost of consulting firms making policy.”]

Combined, the total in lawsuit settlements in the last year has amounted to more than $114 million, with the potential of much more money coming Rhode Island’s way, pending the outcome of a lawsuit against drug manufacturer Teva Pharmaceuticals, scheduled to go to trial in March of 2022 in Providence, and the continuing legal efforts to hold the Sackler family and Purdue Pharma accountable. [See link to ConvergenceRI story, “They aren’t bankrupt. They’re loaded. We fight on.”]

The settlement brought together the separate lawsuits brought by the state of Rhode Island and those on behalf of numerous cities and towns into one unified agreement. Mulvaney, in turn, provided documentation of where the settlement money would be going – with 20 percent going to each of the 39 cities and towns, and 80 percent going to the state.

But the facts are nothing without their nuance. And, despite Mulvaney’s excellent reporting, there were several elements missing from the narrative:

• The first was a lack of emphasis placed on the brilliance of Attorney General Neronha’s strategic legal negotiations to achieve the complex settlement: all the money recovered would now be used to address opioid abatement. Further, the state's  80 percent share, instead of being swallowed up into the General Fund and then doled out by legislative leaders, would be controlled by an advisory board, avoiding what happened with the 1998 Tobacco Settlement money, where only a small percentage of the money has ever been targeted for tobacco prevention.

For the very first time in Rhode Island legal history, all of the money recovered from litigation from the bad actors in the opioid scandal – the manufacturers, the distributors, and the business consultants advising them – must be used for “opioids abatement,” steps that specifically included treatment, overdose rescue, prevention, and recovery.

And, written into the settlement is a process put into place where the state's 80 percent share of the monies would be distributed under recommendations put together by a collaborative advisory committee, one that included members of the recovery community, under the direction of R.I. EOHHS Secretary Womazetta Jones. The result: community members and not just legislative leaders, and public health practitioners and not just the Governor’s policy staff, will be largely responsible for deciding how the state money – roughly $90 million – is spent. [See link below to description of process by R.I. Attorney General’s Neronha’s office on Pages 13 and 14.]

[Editor’s Note: Mulvaney did describe this process in her article, but without a full explanation of its historical significance.]

• The second missing element in the coverage was a sly fist bump that House Speaker Joseph Shekarchi gave to Senate President Dominick Ruggerio, after each had spoken from the podium, heaping praise upon private lawyer Eva Mancuso, who had managed the process of getting cities and towns to sign onto the lawsuit, in what appeared to be an orchestrated gesture to Mancuso and the old school way of doing business in politics.

The fist bump was performed literally in front of Secretary Jones, who was sitting in between them – and who, surprisingly, had not been invited to speak from the podium. The two legislative leaders simply ignored her presence as they fist-bumped.

Translated, articulate Black women that direct Rhode Island agencies are still apparently “invisible” to the older white male elected officials. It is well past time for uncomfortable conversations to occur that call out the racism, unconscious or not, practiced by the state’s legislative leadership.

[Editor's Note: When it comes to the political calculations for the 2022 elections, watching the gleeful fist bump performed by Speaker Shekarchi and President Ruggerio, behaving as if they were privileged spectators in the owner’s box attending a professional sports event and not at a public news conference that was, in many ways, marking the demise of the old way of doing business, where money was divvied up in the backroom, brought to mind the Bob Dylan lyric: “Something is happening, and you don’t know what it is, do you, Mr. Jones.”]

• Third, there were the apparent lies of omission [emphasis added] by Gov. Dan McKee when he spoke from the podium, as the Governor praised the settlement. “Let’s get the funding where it needs to [go] and put an end to this opioid crisis,” Gov. McKee said, as quoted by Mulvaney.

The problem: Gov. McKee himself has proven to be the biggest obstacle to getting the funding where it needs to go. In McKee’s FY 2023 budget, for instance, there is no mention of any funding increases to be directed to support recovery programs and community and mental health behavioral programs, despite overdose deaths being at an all-time high. Nothing. Nada. Zip. Rien.

But wait, it gets worse. A request to increase Adult Substance Use Disorder residential rates under Medicaid, recommended by R.I. EOHHS in its unconstrained budget request, did not make it into the final Governor’s proposed FY2023 budget. Why?

This omission was first reported by ConvergenceRI, quoting state Sen. Sam Bell, who said: “This is f***ing wild. They seem to be canceling the inpatient substance use disorder beds Medicaid billing initiative.” [See link below to ConvergenceRI story, “When the news media shifts into a cheering squad.”] The budget cut was subsequently reported on four days later by Uprise RI.

The missing backstory – one that most of the Rhode Island news media had failed to report on – was what had occurred in early September of 2021, when Gov. McKee and Richard Charest, the director of R.I. BHDDH, attempted to cut more than $2 million in funding for recovery programs, until a rebellion by the recovery community thwarted the move – a revolt spurred by the reporting of ConvergenceRI. [See links below to ConvergenceRI stories, “BHDDH cuts more than $2 million in recovery programs,” “Hard of hearing? BHDDH’s Charest, Gov. McKee, seem to be tone deaf.”]

The biggest complaint emerging from recovery program providers in the aftermath of the proposed cuts was the way that they were being treated by the McKee administration – as vendors, not as partners, excluded from participation in the decision-making around funding. And how, as a result of the McKee administration’s proposed cuts, the lives of vulnerable clients being served by the recovery programs were being sacrificed. “People will still be overdosing, but will now be without services,” Tommy Joyce director of Recovery Support Services at The East Bay Recovery Center, had told Charest, during the intervention staged at the Sept. 8, 2021, meeting of the Governor’s Task Force on Overdose Prevention and Intervention.

The new funding strategy created under the settlement announced on Jan. 25, 2022, under Attorney General Neronha’s leadership, may prove to be a game-changer.

Yet, the Governor’s glib communications team was already putting out a news release, less than 90 minutes after the news conference concluded, under the headline, “What municipal leaders are saying about state settlement with opioid distributors,” reframing the story as one touting the Governor’s efforts, shamelessly attempting to put Gov. McKee at the center of the story. It seems that Gov. McKee may be more concerned about touting his political health, rather than public health.

• Fourth, there appeared to be a glaring lack of knowledge around substance use issues by many of the reporters who were covering the Attorney General’s news conference. Two TV reporters from WJAR and WPRI said that they had never heard of “Dopesick,” the Hulu TV series based on the writing of reporter Beth Macy and her book of the same name, with the subtitle, “Dealers, doctors and the drug company that addicted America,” which recounted the failed efforts to hold the Sackler family and Purdue Pharma accountable.

For all the media distractions around who is running – and who is not – in the wake of Congressman Jim Langevin’s decision not to run for re-election, the lack of contextual knowledge about the causes of the opioid epidemic by members of the Rhode Island news media is a significant problem, one that could be easily remedied. The question is: Which candidate running for Governor – or for the Congressional seat – would be willing to host a community viewing party of “Dopesick?”

•  Fifth, the bizarre question posed by a “business” reporter at the news conference, who questioned the legal strategy behind Attorney General’s efforts to hold Johnson & Johnson accountable for their misdeeds, because after all, the firm was just trying to make money.

Mary C. Serreze, a staff writer for Providence Business First, the newest entry into the business news marketplace in Rhode Island, had asked a question of Attorney General Neronha in what seemed an indignant tone of voice, demanding to know what was the legal rationale behind the prosecution of Johnson & Johnson [and, for that matter, McKinsey & Company, and the three major drug distributors]: What was wrong with making money? she asked. Wasn’t that their right, as a corporation?

Neronha’s pithy response was on point. The lawsuit was not about challenging Johnson & Johnson’s right to make money; it was about seeking to hold companies accountable that were making money by hurting people and knowingly putting lives in danger, hiding the risks involved.

It was a point driven home by the presence of Deborah Parente, a parent who had lost her son to an overdose to opioid and heroin addiction, who had been invited by Attorney General Neronha to attend the news conference.

The faux outrage voiced by Serreze in her questioning was perhaps a telling sign about how warped and distorted the narrative has become when it comes to talking about the rights of businesses to engage in deceptive practices that can harm and poison people for profit.

Serreze’s bizarre questioning of Attorney General Neronha was not reported on by other news media in the room.

A brief refresher course on corporate deception
For Serreze’s benefit and for other young reporters and older readers , here is a brief refresher course on what Johnson & Johnson did, details presented as evidence in an Oklahoma trial brought by that state’s attorney general, as recounted by the Office of the Oklahoma Attorney General Mike Hunter, under the heading, “After resting case, state points to critical evidence that shows Johnson & Johnson is kingpin behind state’s opioid epidemic”:

• Johnson & Johnson created a mutant strain of poppy in 1994 that allowed it to manufacture and supply massive amounts of opioids. For years, Johnson & Johnson supplied more than 60 percent of all active ingredients for opioids manufactured and sold in the United States.

• Johnson & Johnson created this strain specifically in anticipation of potential future demand for oxycodone. Purdue said its biggest barrier to success was getting enough supply of oxycodone. Johnson & Johnson met with Purdue for years to discuss Purdue’s supply needs. Johnson & Johnson told Purdue they would meet all of its needs if Purdue would sign a long-term supply agreement. That agreement was signed by both parties.

• Johnson & Johnson then went on a decade and a half long campaign to market all opioids – not just their named brands – as safe for everyday pain and having a low risk of addiction. Since they were the No. 1 supplier of narcotic, opioid active ingredients in the United States, Johnson & Johnson had every incentive to boost the opioid market as a whole. This “unbranded” marketing worked.

• Between 2000 and 2011, Johnson & Johnson sales representatives targeted Oklahoma doctors nearly 150,000 times and marketed their own synthetic opioids such as fentanyl, tapentadol and tramadol for use as broadly as possible.

• Johnson & Johnson specifically targeted high prescribers of opioids and reinforced their misrepresentations that opioids were safe and effective for everyday pain. They sent sales representatives into pill mills dozens of times to try to get doctors to write more and more prescriptions.

• Johnson & Johnson had a detailed “Influence Map” that it used to target and influence every level of our state’s government with its marketing lies to try to make sure that their opioids were on our approved lists. Company representatives told state leaders these drugs were safe and effective. Internal emails show Johnson & Johnson employees bragging about persuading Oklahoma officials not to place restrictions on Johnson & Johnson opioids.

• Johnson & Johnson used sales “hooks” to specifically target women and returning war veterans.

• The number of babies born with Neonatal Abstinence Syndrome—horrible withdrawal due to exposure to opioids when the mother is pregnant—skyrocketed after 2000. As Tonya Radcliffe, a mother of three foster children born with opioid exposure testified, the only way to explain what an NAS baby goes through is “Hell on earth.”

• Johnson & Johnson engaged with and funded dozens of industry “front groups” to spread these false statements and promote broad and unfettered use of opioids for everyday pain.

• In 1990, Johnson & Johnson’s outside lawyer met with Congress to get more relaxed rules for importing Johnson & Johnson’s opioids into the United States from Australia where Johnson & Johnson would later plant its crops of the mutant poppy. That same lawyer was an author of the 1997 Consensus Statement a document that called for widespread use of all opioids for chronic pain and claims that opioids were rarely addictive. This document was disseminated throughout the state.

• Johnson & Johnson engaged in media outreach to children and adolescents centered on the company’s pain management hook. And just days after the trial began, the website with the outreach information was taken down. When the State exposed this to the Court, Johnson & Johnson had the website put back up.

• Johnson & Johnson was warned by its own medical advisory team to not market these drugs as low risk for abuse and misuse in 2001, yet it did so anyway, even after it was warned by the FDA to stop.

• Every witness that Johnson & Johnson has called in its case has gutted Johnson & Johnson’s defense even further. Instead, their witnesses’ testimony has corroborated the state’s case – that oversupply of opioids leads to addiction and death. And none of Johnson & Johnson’s witnesses has rebutted the evidence that Johnson & Johnson was the source of the oversupply.

• Department of Mental Health and Substance Abuse Commissioner Terri White testified that it will cost the State over $17 billion to clean up the mess Johnson & Johnson made – money that must be spent to abate this crisis by the company that was a primary cause of it, not the taxpayers of this state.

Johnson & Johnson, with a reported market capitalization of some $460 billion, is also in the process of battling its legal liability for its inclusion of talc in its baby and personal hygiene products, which have allegedly been linked to cancer, seeking bankruptcy protection similar to what the Sackler family has been seeking around its addictive painkiller, OxyContin.

Come listen to the story about a man named Jed…
A similar litany of bad-faith practices were recently revealed in a court case in West Virginia, as reported in The Guardian by reporter Chris McGreal, in a story published on May 16, 2021.

Once again, it seems worth recounting the bad business practices revealed in the court case, as an explanation perhaps why the three drug distributors may have decided to settle with Rhode Island rather than go to trial in March of 2022.

As McGreal reported: “The trial of pharmaceutical firms accused of illegally flooding West Virginia with opioids was told last week that senior staff at AmerisourceBergen, the 10th-largest company in the U.S. by revenue, routinely disparaged communities blighted by the worst drug epidemic in the country’s history.”

McGreal’s story continued: “One email in 2011 included a rhyme built around ‘a poor mountaineer’ named Jed who ‘barely kept his habit fed.’ According to the verse, ‘Jed’ travels to Florida to buy ‘Hillbilly Heroin,’ the nickname for OxyContin, the drug manufactured by Purdue Pharma which kickstarted an epidemic that has claimed more than 500,000 lives.”

As McGreal recounted, “Florida was well known through the 2000s for lax regulation of pain clinics where doctors illegally prescribed and dispensed large amounts of opioids to those the verse calls a ‘bevy of Pillbillies.’”

According to McGreal’s story, “Another rhyme described Kentucky as ‘OxyContinville’ because of the high use of the drug in the poor rural east of the state.”

The disparagement continued, as McGreal’s story documented: “When Kentucky introduced new regulations to curb opioid dispensing, an AmerisourceBergen executive wrote in a widely circulated email: ‘One of the hillbilly’s [sic] must have learned how to read :-).’”

The contempt shown in the emails presented into evidence at the trial included, according to McGreal’s story: “Another email contained a mocked up breakfast cereal box with the word ‘smack’ under the words ‘OxyContin for kids.’”

One of those who wrote and circulated disparaging emails, according to McGreal’s story, was “…Chris Zimmerman, the senior executive responsible for enforcing AmerisourceBergen’s legal obligation to halt opioid deliveries to pharmacies suspected of dispensing suspiciously large amounts of the drugs, often in concert with corrupt doctors who made small fortunes writing illegal prescriptions.”

McKinsey & Company’s role
It is also worth revisiting the role that McKinsey & Company played in “turbocharging” the opioid epidemic on behalf of Purdue Pharma and the Sackler family.

As ConvergenceRI had reported in February of 2021: Thanks to the vigilance of R.I. Attorney General Peter Neronha, Rhode Island will receive $2.59 million in its share of the settlement. The money will be used solely to “address the impact of the opioid epidemic on Rhode Islanders through treatment, rescue, recovery, and prevention programs,” according to the news release issued by the Attorney General the next morning. [The lawsuit is still being pursued against other “bad” corporate actors in the opioid travesty.]

The complaint filed in the case by the R.I. Attorney General’s office laid out in remarkable detail the sordid relationship between McKinsey and Purdue Pharma.

Here are some of the nasty details:
• McKinsey sold its ideas to OxyContin maker Purdue Pharma, L.P. [“Purdue”] for more than 15 years, from 2004 to 2019, including before and after Purdue’s 2007 guilty plea for felony misbranding.

• McKinsey advised Purdue and other manufacturers to target prescribers who write the most prescriptions, for the most patients, and thereby make the most money for McKinsey’s clients.

• Early in their relationship, McKinsey advised Purdue that it could increase OxyContin sales through physician targeting and specific messaging to prescribers. These McKinsey strategies formed the pillars of Purdue’s sales tactics for the next 15 years.

• In 2008, McKinsey worked with Purdue to develop its FDA-mandated Risk Evaluation and Mitigation Strategy [REMS]. McKinsey advised Purdue to “band together” with other opioid manufacturers toward a class REMS to “formulate arguments to defend against strict treatment by the FDA.” Ultimately, the FDA adopted a class-wide REMS that resulted in high-dose OxyContin remaining subject to the same oversight as lower-dose opioids.

But wait, as Emeril might say in pushing his new kitchen device, there’s more:

• In 2009, Purdue hired McKinsey to increase “brand loyalty” to OxyContin. McKinsey recommended the best ways to ensure loyalty to the brand by targeting specific patients, including patients new to opioids, and developing targeted messaging for specific prescribers.

Purdue thereafter adopted McKinsey’s proposed prescriber messaging and patient targeting advice and incorporated them into Purdue’s marketing and sales strategies.

• In 2013, McKinsey conducted another analysis of OxyContin growth opportunities for Purdue, and laid out new plans to increase sales of OxyContin. Among the key components of McKinsey’s plan adopted by Purdue were to: a) focus sales calls on high-volume opioid prescribers, including those who wrote as many as 25 times as many OxyContin scripts as their lower volume counterparts; b) remove sales representative discretion in target prescribers; c) focus Purdue’s marketing messaging to titrate to higher, more lucrative dosages; d) significantly increase the number of sales visits to high-volume prescribers; and e) create an “alternative model for how patients receive OxyContin,” including direct distribution to patients and pharmacies, to help address the “product access” problem.

• Purdue approved McKinsey’s plan, and together with McKinsey, moved to implement the plan to “Turbocharg[e] Purdue’s Sales Engine,” under the name Evolve 2 Excellence [E2E]. E2E significantly increased Purdue’s opioid sales, in particular, for OxyContin.

Translated, McKinsey greased the skids to make more profits for Purdue, aiding and abetting in Purdue’s role as the pusherman to get folks hooked on dangerous prescription drugs. To quote Stan Lee, nuf said.

Accountability
It may seem like overkill to list in such great detail all the sins of the corporations involved in the legal settlements reached by Attorney General Peter Neronha and his team, but the disliked reality is that the state under Gov. Dan McKee still lacks a comprehensive approach to addressing the opioid epidemic – and an apparent unwillingness to invest money into recovery programs, despite a budget surplus and plentiful federal funds.

For all the planning around what Rhode Island may look like in 2030, or efforts to design how Rhode Island should spend its $1.1 billion in federal American Rescue Plan Act funds, and the proposed FY 2023 spending budget by Gov. Dan McKee, the missing ingredient, is any discussion or investment in recovery. More than expanding medication-assisted treatment, there has been a failure by the McKee administration to expand recovery options and recovery housing options in Rhode Island. Treatment options for new clients have been more scarce.

As Attorney General Neronha said, in citing the number of fatal overdose deaths that have occurred in Rhode Island in the last six years since 2016, behind every number is an individual, a person, a family member. The epidemic has touched nearly every person in the state. And, as the late Jim Gillen often said, along with Tom Coderre, people in recovery are becoming a constituency of consequence.

© convergenceri.com | subscribe | contact us | report problem | About | Advertise

powered by creative circle media solutions

Join the conversation

Want to get ConvergenceRI
in your inbox every Monday?

Type of subscription (choose one):
Business
Individual

We will contact you with subscription details.

Thank you for subscribing!

We will contact you shortly with subscription details.