Big Pharma is notorious for their role in the opioid epidemic that has killed more than half a million Americans. But according to a new analysis, judges have played a major contributing role as well.
An analysis of U.S. court secrecy, conducted by Reuters, shows that by sealing evidence from the public, judges may have lengthened and deepened the epidemic.
In 2001 the first lawsuit filed by a state against a Big Pharma company that manufactured OxyContin began. West Virginia brought the suit against Purdue Pharma LP, accusing them of minimizing the drug’s risks and telling doctors that it was less addictive than other opioids.
During the discovery part of the case, thousands of internal memos from Purdue, including marketing plans and sales calls to doctors, were made available to the prosecution. This mountain of evidence convinced Judge Booker T. Stephens that the prosecution had enough material to convince a jury that Purdue was deliberately lying in their sales pitches to doctors.
The problem is, Judge Stephens sealed this information from the public after Purdue and the state reached an agreement. And he was not the only judge to take this route.
Since that first lawsuit more than a dozen other judges in similar cases against Purdue have also sealed the company’s records. It wasn’t until 12 years after the first case that the evidence was made public, when someone leaked it to The Los Angeles Times.
“OxyContin, the first billion-dollar-a-year narcotic, was not the reliable 12-hour painkiller Purdue long claimed it was,” reports Reuters. “Its effects often wore off much sooner, exposing patients to a relapse of pain, withdrawal, or both – suffering relieved only by the next pill. When doctors raised concerns, the documents showed, Purdue sales reps counseled them to put patients on bigger, more dangerous doses.”
As the analysis points out, it was already too late for the 245,000 people that had died after overdosing on the drug. “We don’t know how many lives we could have saved,” said Congresswoman Katherine Clark, who has been investigating the causes of the opioid epidemic.
The secrecy hasn’t ended, though. Other judges, such as Federal Judge Dan Polster, still insist on providing cover for opioid makers, distributors and retailers. Polster is currently presiding over a mass of litigation seeking to hold all of Big Pharma responsible for the epidemic and all documents are being kept from the public.
When Reuters dug deeper into cases over the past two decades, what they found was even more unnerving:
In an unprecedented analysis, Reuters found that over the past 20 years, judges sealed evidence relevant to public health and safety in about half of the 115 biggest defective-product cases consolidated before federal judges in so-called multidistrict litigation, or MDLs. Those cases comprised nearly 250,000 individual death and injury lawsuits, involving dozens of products used by millions of consumers: drugs, cars, medical devices and other products. And the numbers don’t convey the full extent of information locked away because they don’t include thousands of product-liability cases heard in state courts.
Reuters provides several examples:
- In cases where the trigger on Remington Arms Co’s Remington 700 hunting rifle was prone to misfiring, judge after judge sealed evidence away from the public. By the time a judge in 2014 refused to seal documents in his case more than 200 people had died from accidental shootings.
- In cases against General Motors Co where the company was accused of knowing that reinforcing their vehicle roofs would save lives but failed to make changes, judges sealed all records for over a decade, during which thousands of people died in rollover accidents. After the records were released and viewed by federal regulators, the federal government upgraded their standards on roof strength.
As Reuters states:
In fact, court records are presumed to be public as a matter of law. They can only be sealed for valid concerns about privacy, including personal medical records, and to protect company trade secrets.
In most states and nearly all the 13 federal appellate circuits, judges are legally obliged to weigh any litigant’s request that information be sealed against the broader public interest in making it public. They also must explain in the court record any decision in favor of secrecy. Judges incur no penalty for failing to do these things.
Secrecy has become the norm in the court system. Not only have judges sealed evidence that makes complete analysis impossible in thousands of cases involving defective products, but they have also failed to explain their reasoning even though they are required to do so. In 85 percent of the cases analyzed by Reuters judges provided no explanation for allowing secrecy.