This post was authored by Richard Zitrin for Public Justice
The horrific OxyContin story is not over. But it has been exposed: how at Purdue Pharma, everyone from top executives to the sales force repeatedly lied to physicians and the public about this drug. How for almost twenty years, Purdue uniformly claimed that Oxy was not addictive, and that when a patient’s pain continued, the “solution” was to dramatically increase dosages to twice, four times, even eight times the original dose. Finally, how the company and its owners, the Sackler family, turned to bankruptcy and were forced to negotiate penalties in the billions of dollars.
But the truth is little solace for the loved ones of the hundreds of thousands of victims who have died.
Most tragic of all — this devastation was preventable. Imagine if the truth about OxyContin had been disclosed in court records in 2001, when the first major Oxy lawsuit was filed by the state of West Virginia against Purdue. In that case, Purdue was forced to provide thousands of internal memos, notes of sales calls, marketing plans, and other records that showed the truth – but only after a fifteen-year delay. In 2016, a Los Angeles Times investigation exposed the truth under the all-CAPS headline: ‘YOU WANT A DESCRIPTION OF HELL?’ OXYCONTIN’S 12-HOUR PROBLEM.
Instead of disclosure, the judge in that case and other judges in later lawsuits all acceded to Purdue’s demands to keep the damning evidence secret from the rest of us.
Simply put, while the participants in the lawsuits knew the truth about Oxy, the public, the FDA, and the physicians prescribing for their patients all remained in the dark. How many lives could have been spared if what first Purdue produced in court had been available to all of us?
Instead, Purdue successfully kept its deadly secrets shielded from the public thanks to the complicity of the parties to lawsuits, their lawyers, and the judges who ordered secrecy. According to its extensive 2019 exposé, Reuters learned that at least a dozen judges had “secretized” the Purdue smoking guns; one, a federal judge in Cleveland, maintained a secrecy “protective order” over the information in 2,000 opioid cases before him.
Reuters estimated that those years of secrecy cost the lives of 245,000 people.
Purdue Pharma is hardly alone in using courthouse secrecy to “protect” the truth of its hazardous products from exposure. In 2002, Bayer began distributing Essure, a non-surgical form of birth control using metal coils. By 2008, Bayer knew that metal shards could break from Essure’s coils, causing women excruciating pain and, often, miscarriages and the inability to either conceive or have sexual relations. Bayer said nothing and continued to sell Essure. Over 27,000 lawsuits were filed over Essure, all consolidated in one court in Alameda County, California. But there, a judge issued an order to “protect” Bayer’s secrecy – while simultaneously not protecting the public.
The result of this secrecy? Over 67,000 complaints to the FDA, tens of thousands of serious injuries, and at least twenty-three deaths, according to the most conservative FDA numbers. None of this damage would have happened if only the public had access to the truth.
These examples are just the tip of a huge secrecy iceberg. Other court cases have concealed dangers of defective tires that shred, car seats that break in collisions, infant and toddler “sleepers” that suffocate kids, furniture that tips over and crushes children, and on and on. Each hazard has caused needless deaths and injuries.
No judicial system should operate this way. Right now in California, State Senator Connie M. Leyva’s Public Right to Know Act (S.B. 1149) is awaiting a floor vote in Sacramento. This bill, which covers cases about defective products and environmental hazards, will forbid the parties from agreeing to secrecy because it harms the public and will change the current system from one that not only permits but fosters secrecy to one that presumes open transparency. Under SB 1149, if the information in a case is relevant to an issue of danger, then the public has the right to know about it. No longer will secrets about dangers be “protected” from the public in California. And the ripple effect will quickly be felt across the country.
Senator Leyva’s important bill will make this public right to know a reality.
Richard Zitrin is Lecturer Emeritus at the University of California, Hastings, and the author of the forthcoming book Trial Lawyer: A Life Representing People Against Power.
Photo by Mike Licht, via Flickr