IN THE CIRCUIT COURT FOR SHELBY COUNTY

AT MEMPHIS, TENNESEE

----------------------------------------------- x
SHELBY COUNTY, BY THE SHELBY COUNTY
BOARD OF COMMISSIONERS,
Case No: ______________
Plaintiff, Division

- against - JURY DEMAND

PURDUE PHARMA L.P.; PURDUE PHARMA

INC.; THE PURDUE FREDERICK COMPANY,
INC.; TEVA PHARMACEUTICALS USA, INC.;
CEPHALON, INC.; JOHNSON & JOHNSON;
JANSSEN PHARMACEUTICALS, INC.; ORTHO-
MCNEIL-JANSSEN PHARMACEUTICALS, INC.
N/K/A JANSSEN PHARMACEUTICALS, INC.;
JANSSEN PHARMACEUTICA, INC. N/K/A
JANSSEN PHARMACEUTICALS, INC.; ENDO
PHARMACEUTICALS, INC.; ALLERGAN PLC
F/K/A ACTAVIS PLC; ACTAVIS, INC. F/K/A
WATSON PHARMACEUTICALS, INC.;
WATSON LABORATORIES, INC.; ACTAVIS
LLC; ACTAVIS PHARMA, INC. F/K/A WATSON
PHARMA, INC., ENDO HEALTH SOLUTIONS
INC.; INSYS THERAPEUTICS, INC.;
MCKESSON CORPORATION; CARDINAL
HEALTH, INC.; AMERISOURCEBERGEN
CORPORATION; TENNESEE CVS PHARMACY,
LLC, RITE AID OF TENNESEE, INC.; CENTER
POINTE MEDICAL CLINIC, LLC; ELIZABETH
ANN BOWERS CAMPBELL, PAMELA MOORE,;
RUSSELL PORTENOY; PERRY FINE; SCOTT
FISHMAN; and LYNN WEBSTER,

Defendants.
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INTRODUCTION ........................................................................................................................................... 1
JURISDICTION AND VENUE .................................................................................................................14
PARTIES ..........................................................................................................................................................15
A. Plaintiff.................................................................................................................................................15
B. Defendants. .........................................................................................................................................15
FACTS RELEVANT TO ALL CAUSES OF ACTION .........................................................................27
A. Background on Pain Medicine. ........................................................................................................27
1. Safe and Effective Treatment of Chronic Pain Centers on Informed Risk
Management ...................................................................................................................................27
2. Opioid Use Is Associated with Known and Substantial Risks. ..............................................27
3. Long-Term Opioid Use Benefits Are Unproven and Contradicted. .....................................34
4. Defendants Impact on the Perception and Prescribing of Opioids......................................37
B. Defendants Promoted Their Branded Products Through Direct Marketing to
Prescribers and Consumers. .............................................................................................................39
1. Defendants Relied Upon Branded Advertisements. ................................................................39
2. Defendants Relied Upon Their Sales Forces and Recruited Physician Speakers. ................40
3. Defendants Directed These Promotional Efforts Through Detailed Marketing Plans. .....43
a. Targeting categories of prescribers .........................................................................................44
b. Increasing direct to consumer marketing ..........................................................................44
c. Differentiating each brand .......................................................................................................45
d. Moving beyond office visits.....................................................................................................46
4. Defendants Marketed Opioids in Shelby County Using the Same Strategies and
Messages They Employed Nationwide.......................................................................................46
C. Defendants Used Unbranded Marketing to Evade Regulations and Consumer
Protection Laws. .................................................................................................................................47
1. Regulations Governing Branded Promotion Require that it Be Truthful, Balanced, and
Supported by Substantial Evidence.............................................................................................48
2. Defendants Deployed Front Groups and Doctors to Disseminate Unbranded
Information on Their Behalf. ......................................................................................................50
a. Defendants Use of KOLs .......................................................................................................53
i. Defendant Russell Portenoy ...............................................................................................55
ii. Defendant Lynn Webster ....................................................................................................57
b. Research That Lacked Supporting Evidence ....................................................................58
c. Treatment Guidelines ...............................................................................................................61
i. FSMB ......................................................................................................................................61

i
 ii. AAPM/APS Guidelines ......................................................................................................63
iii. American Geriatrics Society ................................................................................................64
iv. Guidelines That Did Not Receive Defendants Support ................................................65
d. Continuing Medical Education ...............................................................................................67
e. Unbranded Patient Education .................................................................................................69
f. Defendants Use of Front Groups .........................................................................................70
3. Defendants Acted in Concert with KOLs and Front Groups in the Creation,
Promotion, and Control of Unbranded Marketing. .................................................................74
4. Defendants Targeted Vulnerable and Lucrative Populations. ................................................76
a. The Elderly .................................................................................................................................76
b. Veterans ......................................................................................................................................76
D. Why Defendants Marketing Messages Are Misleading and Unfair ...........................................78
1. Defendants and Their Third-Party Allies Misrepresented that Opioids Improve
Function ..........................................................................................................................................79
2. Defendants and Their Third-Party Allies Concealed the Truth About the Risk of
Addiction from Long-Term Opioid Use ...................................................................................85
3. Defendants and Their Third-Party Allies Misrepresented that Addiction Risk Can Be
Avoided or Managed .....................................................................................................................96
4. Defendants and Their Third-Party Allies Created Confusion By Promoting the
Misleading Term Pseudoaddiction. .........................................................................................98
5. Defendants and Their Third-Party Allies Claimed Withdrawal is Simply Managed......... 100
6. Defendants and Their Third-Party Allies Misrepresented that Increased Doses Pose
No Significant Additional Risks ............................................................................................... 102
7. Defendants and Their Third-Party Allies Deceptively Omitted or Minimized Adverse
Effects of Opioids and Overstated the Risks of Alternative Forms of Pain Treatment. 105
8. Purdue Misleadingly Promoted OxyContin as Providing 12 Hours of Relief ................... 110
E. Each Defendant Engaged in Deceptive Marketing, Both Branded and Unbranded, that
Targeted and Reached County Prescribers. ................................................................................. 114
1. Acatvis .......................................................................................................................................... 114
a. Actavis Deceptive Direct Marketing .................................................................................. 115
i. Actavis Deceptive Sales Training ................................................................................... 117
ii. Actavis Deceptive Speaking Training ............................................................................ 121
b. Actaviss Deceptive Statements to Shelby County Prescribers and Patients................. 123
2. Cephalon ...................................................................................................................................... 123
a. Cephalons Deceptive Direct Marketing............................................................................. 124

ii
 i. Cephalons Fraudulent Off-Label Marketing of Actiq and Fentora .......................... 124
a) Cephalon launched its fraudulent marketing scheme for Actiq ............................. 125
b) October 1, 2006 Cephalon fraudulently marked Actiqs successor drug,
Fentora ............................................................................................................................ 127
c) September 2007 Reports of death and serious side effects led the FDA to
issue a public health warning for Fentora ................................................................. 129
d) May 6, 2008 The FDA rejected Cephalons request for expanded approval of
Fentora ............................................................................................................................ 130
e) March 26, 2009 the FDAs Division of Drug Marketing, Advertising and
Communications (DDMAC) warned Cephalon about its misleading advertising
of Fentora ....................................................................................................................... 131
f) Cephalon continues to knowingly, deceptively, and illegally promote Fenotra for
off-label uses .................................................................................................................. 132
ii. Cephalons Misrepresentation of the Risks Associated with the Use of Opioids for
the Long-Term Treatment of Chronic Pain .................................................................. 133
b. Cephalons Deceptive Third-Party Statements .................................................................. 135
i. FSMB Responsible Opioid Prescribing ...................................................................... 136
ii. APF Treatment Options: A Guide for People Living with Pain ............................ 137
iii. Key Opinion Leaders and Misleading Science .............................................................. 139
iv. Misleading Continuing Medical Education .................................................................... 140
c. Cephalons Deceptive Third-Party Statements to County Prescribers and Patients .... 143
3. Endo ............................................................................................................................................. 144
a. Endos Deceptive Direct Marketing.................................................................................... 145
i. Endos Sales Force and Deceptive Sales Training ........................................................ 145
a) Endos Sales Force Deceptively Minimized the Risks of Addiction Associated
with Chronic Opioid Therapy. .................................................................................... 148
b) Endos Sales Force Deceptively Implied that Chronic Opioid Therapy Would
Improve Patients Ability to Function. ...................................................................... 150
c) Endos Sales Force Deceptively presented the Risks and Benefits of Opioids to
Make Them Appear Safer Than Other Analgesics .................................................. 151
ii. Endos Speakers Bureau Programs Deceptively Minimized the Risks of Addiction
Associated with Chronic Opioid Therapy ..................................................................... 152
iii. Endos Misleading Journal Supplement ......................................................................... 154
iv. Endos Deceptive Unbranded Advertising .................................................................... 154
b. Endos Deceptive Third-Party Statements ......................................................................... 155
i. APF ...................................................................................................................................... 156

iii
 a) Misleading Medical Education .................................................................................... 159
b) Painknowledge.com ...................................................................................................... 161
c) Exit Wounds .................................................................................................................. 162
ii. Other Front Groups: FSMB, AAPM, and AGS ........................................................... 163
iii. Key Opinion Leaders and Misleading Science .............................................................. 165
c. Endos Deceptive Statements to County Prescribers and Patients ................................ 169
4. Janssen .......................................................................................................................................... 170
a. Janssens Deceptive Direct Marketing ................................................................................ 171
i. Janssens Deceptive Sales Training ................................................................................. 171
ii. Janssens Deceptive Speakers Bureau Programs ........................................................... 173
iii. Janssens Deceptive Unbranded Advertising................................................................. 174
b. Janssens Deceptive Third-Party Statements...................................................................... 175
i. AAPM and AGS Finding Relief: Pain Management for Older Adults .................. 175
ii. AGS Misleading Medical Education ........................................................................... 179
iii. APF ...................................................................................................................................... 179
a) Lets Talk Pain ............................................................................................................... 180
b) Exit Wounds .................................................................................................................. 183
c. Janssens Deceptive Statements to Shelby County Prescribers and Patients ................ 183
i. Janssens Deceptive Medical Education Programs in Shelby County ....................... 183
ii. Janssens Deceptive Detailing Practices in Shelby County .......................................... 183
5. Purdue .......................................................................................................................................... 184
a. Purdues Deceptive Direct Marketing ................................................................................. 185
b. Purdues Deceptive Third-Party Statements ...................................................................... 189
i. APF ...................................................................................................................................... 190
a) Purdues Control of APF ............................................................................................. 190
b) A Policymakers Guide ................................................................................................. 195
c) Treatment Options: A Guide for People Living with Pain .................................... 196
ii. Purdues Work with Other Third Party Front Groups and KOLs ............................ 198
a) FSMB Responsible Opioid Prescribing .................................................................. 198
b) AGS Pharmacological Management of Persistent Pain in Older Persons ........ 198
c) Chronic Pain Management and Opioid Use: Easing Fears, Managing Risks, and
Improving Outcomes ................................................................................................... 199
d) Managing Patients Opioid Use: Balancing the Need and Risk.............................. 199

iv
 e) Path of the Patient, Managing Chronic Pain in Younger Adults at Risk for
Abuse .............................................................................................................................. 200
f) Overview of Management Options ............................................................................ 200
iii. Purdues Misleading Science ............................................................................................ 201
a) Purdues Deceptive Statements to Shelby County Prescribers and Patients ........ 202
6. Insys .............................................................................................................................................. 203
F. The Result of Defendants Fraudulent Scheme .......................................................................... 210
1. Defendants Fraudulent and Deceptive Marketing of Opioids Directly Caused Harm
to Shelby County......................................................................................................................... 210
a. Increase in Opioid Prescribing Nationally ......................................................................... 211
b. The Countys Increased Spending on Opioids .................................................................. 218
i. Defendants Misrepresentations Were Material ............................................................ 219
ii. The Countys Increased Costs Correlate with Defendants Promotion .................... 220
2. Defendants Fraudulent and Deceptive Marketing of Opioids Directly Caused Harm to
Shelby County Consumers. ....................................................................................................... 220
a. Increased Opioid Use Has Led to an Increase in Opioid Abuse, Addiction, and Death
220
b. Increased Opioid Use Has Increased Costs Related to Addiction Treatment.............. 221
c. Increased Opioid Use Has Fueled An Illegal Secondary Market for Narcotics and the
Criminals Who Support It .................................................................................................... 222
3. Defendants Fraudulent Marketing Has Led to Record Profits .......................................... 223
4. Defendants Fraudulently Concealed Their Misrepresentations........................................... 224
G. Through Their Public Statements, Marketing, And Advertising, Defendants Deceptions
Deprived Plaintiff Of Actual Or Presumptive Knowledge Of Facts Sufficient To Put Them
On Notice Of Potential Claims. Defendants Entered Into And Engaged In A Civil
Conspiracy.231
H. Defendants Flooded Plaintiff Counties with Suspiciously Large Amounts of Opioids. ..231

v
 Plaintiff, the County of Shelby, Tennessee (Plaintiff, County, or Shelby County), by and

through its attorneys, for its Complaint against Defendants Purdue Pharma L.P.; Purdue Pharma Inc.;

the Purdue Frederick Company, Inc.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Johnson &

Johnson; Janssen Pharmaceuticals, Inc.; Janssen Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals,

Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Endo Health

Solutions Inc.; Endo Pharmaceuticals, Inc.; Allergan plc f/k/a Actavis plc; Actavis, Inc. f/k/a Watson

Pharmaceuticals, Inc.; Watson Laboratories, Inc.; Actavis LLC; and Actavis Pharma, Inc. f/k/a

Watson Pharma, Inc.; Insys Therapeutics, Inc. (collectively, Manufacturers or Defendants);

McKesson Corporation, Cardinal Health Inc., Amerisource Drug Corporation (Collectively,

Distributor Defendants or Defendants); Tennesee CVS Pharmacy, LLC, Rite Aid of Tennesee,

Inc. (Pharmacy Defendants); Center Pointe Medical Clinic, LLC, Elizabeth Ann Bowers Campbell,

Pamela Moore, (Pill Mill Defendants); Russell Portenoy; Perry Fine; Scott Fishman; and Lynn

Webster; (collectively, Physicians or Defendants) (collectively, Defendants) alleges as follows:

INTRODUCTION

1. This case is about one thing: corporate greed. Defendants put their desire for profits

above the health and well-being of Shelby County consumers at the cost of Plaintiff.

2. Shelby County spends millions of dollars each year to provide and pay for health care,

services, pharmaceutical care and other necessary services and programs on behalf of residents of its

County whom are indigent or otherwise eligible for services, including payments through services such

as Medicaid for prescription opium painkillers (opioids) which are manufactured, marketed,

promoted, sold, and/or distributed by the Defendants.

3. Shelby County also provides a wide range of other services to its residents, including

law enforcement, services for families and children, and public assistance.

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 4. In recent years, the County of Shelby has been forced to expend exorbitant amounts of

money, described further below, due to what is commonly referred to as the opioid epidemic and as

a direct result of the actions of Defendants.

5. Plaintiff is one of the largest employers in Teneseee. Plaintiff is also responsible for

partially funding a medical insurance plan for its employees.

6. Defendants knew that opioids were effective treatments for short-term post-surgical

and trauma-related pain, and for palliative (end-of-life) care. Yet they also knewand had known for

yearsthat opioids were addictive and subject to abuse, particularly when used long-term for chronic

non-cancer pain (pain lasting three months or longer, hereinafter referred to as chronic pain), and

should there not be used except as a last-resort.

7. Defendants further knewand had known for yearsthat with prolonged use, the

effectiveness of opioids wanes, requiring increases in doses and markedly increasing the risk of

significant side effects and addiction.1, 2

8. Defendants also knew that controlled studies of the safety and efficacy of opioids were

limited to short-term use (not longer than 90 days), and in managed settings (e.g., hospitals), where the

risk of addiction and other adverse outcomes was much less significant.

9. Indeed, the U.S. Food and Drug Administration (FDA) has expressly recognized that

there have been no long-term studies demonstrating the safety and efficacy of opioids for long-term

use.3

1
See, e.g., Russell K. Portenoy, Opioid Therapy for Chronic Nonmalignant Pain: Current Status, 1 Progress in
Pain Res. & Mgmt. 247 (1994).
2
The authoritative Diagnostic and Statistical Manual of Mental Disorders, (5th ed. 2013) (DSM-V)
classifies addiction as a spectrum of substance use disorders that ranges from misuse and abuse of
drugs to addiction. Patients suffer negative consequences wherever they fall on the substance use
disorder continuum. Throughout this Complaint, addiction refers to this range of substance use
disorders.

2
 10. Prescription opioids, which include well-known brand-name drugs like OxyContin and

Percocet, and generics like oxycodone and hydrocodone, are narcotics. They are derived from or

possess properties similar to opium and heroin, which is why they are regulated as controlled

substances.4 Like heroin, prescription opioids work by binding to receptors on the spinal cord and in

the brain, dampening the perception of pain. Opioids also can create a euphoric high, which can make

them addictive. At certain doses, opioids can slow the users breathing, causing respiratory depression

and death.

11. In order to expand the market for opioids and realize blockbuster profits, Defendants

needed to create a sea of change in the medical and public perception that would permit the use of

opioids not just for acute and palliative care, but also for long periods of time to treat more common

aches and pains, like lower back pain, arthritis, and headaches.

3
Letter from Janet Woodcock, M.D., Dir., Ctr. for Drug Eval. & Res., to Andrew Kolodny, M.D.,
Pres. Physicians for Responsible Opioid Prescribing, Re Docket No. FDA-2012-P-0818 (Sept. 10,
2013).
4
Since passage of the Controlled Substances Act (CSA) in 1970, opioids have been regulated as
controlled substances. Controlled substances are categorized in five schedules, ranked in order of their
potential for abuse, with Schedule I being the highest. The CSA imposes a hierarchy of restrictions on
prescribing and dispensing drugs based on their medicinal value, likelihood of addiction or abuse, and
safety. Opioids generally had been categorized as Schedule II or Schedule III drugs. Schedule II drugs
have a high potential for abuse, have a currently accepted medical use, and may lead to severe
psychological or physical dependence. 21 U.S.C. 812. Schedule II drugs may not be dispensed
without an original copy of a manually signed prescription from a doctor, which may not be refilled,
and filled by a pharmacist who both must be licensed by their state and registered with the DEA. 21
U.S.C. 829. Opioids that have been categorized as Schedule II drugs include morphine (Avinza,
Embeda, Kadian, MS Contin), fentanyl (Duragesic, Actiq, Fentora), methadone, oxycodone
(OxyContin, Percocet, Percodan, Tylox), oxymorphone (Opana), and hydromorphone (Dilaudid,
Palladone). Schedule III drugs are deemed to have a lower potential for abuse, but their abuse still may
lead to moderate or low physical dependence or high psychological dependence. 21 U.S.C. 812.
Schedule III drugs may not be dispensed without a written or oral prescription, which may not be
filled or refilled more than six months after the date of the prescription or be refilled more than five
times. 21 U.S.C. 829. Some opioids had been categorized as Schedule III drugs, including forms of
hydrocodone and codeine combined with other drugs, like acetaminophen. However, in October 2013,
the FDA, following the recommendation of its advisory panel, reclassified all medications that contain
hydrocodone from Schedule III to Schedule II. See 21 C.F.R. 1308.

3
 12. Defendants, through a sophisticated and highly deceptive and unfair marketing

campaign that began in the late 1990s, deepened around 2006, and continues to the present, set out to,

and did, reverse the popular and medical understanding of opioids. Chronic opioid therapythe

prescribing of opioids to treat chronic pain long-termis now commonplace.

13. To accomplish this reversal, Defendants spent hundreds of millions of dollars: (a)

developing and disseminating seemingly truthful scientific and educational materials and advertising

that misrepresented the risks, benefits, and superiority of opioids long-term use to treat chronic pain

(b) deploying sales representatives who visited doctors and other prescribers and delivered misleading

messages about the use of opioids (c) recruiting prescribing physicians as paid speakers as a means to

secure those physicians future brand loyalty and extend their reach to all physicians; (d) funding,

assisting, encouraging, and directing certain doctors, known as key opinion leaders (KOLs), not

only to deliver scripted talks, but also to draft misleading studies, present continuing medical education

programs (CMEs) that were deceptive and lacked balance, and serve on the boards and committees

of professional societies and patient advocacy groups that delivered messages and developed guidelines

supporting chronic opioid therapy; and (e) funding, assisting, directing, and encouraging seemingly

neutral and credible professional societies and patient advocacy groups (referred to hereinafter as

Front Groups) that developed educational materials and treatment guidelines that were then

distributed by Defendants, which urged doctors to prescribe, and patients to use, opioids long-term to

treat chronic pain.

14. These efforts, executed, developed, supported, and directed by Defendants, were

designed not to present a fair view of how and when opioids could be safely and effectively used, but

rather to convince doctors and patients that the benefits of using opioids to treat chronic pain

outweighed the risks and that opioids could be used safely by most patients. Defendants and the third

parties whom they recruited and supported, all profited handsomely through their dissemination of the

4
deceptive information. KOLs and Front Groups saw their stature in the medical community elevated

dramatically due to Defendants funding, and Defendants saw an equally dramatic rise in their

revenues.

15. Working individually, with, and through these Front Groups and KOLs, Defendants

pioneered a new and far broader market for their potent and highly addictive drugs the chronic pain

market. Defendants persuaded doctors and patients that what they had long understoodthat opioids

are addictive drugs and unsafe in most circumstances for long-term use was untrue, and to the

contrary, that the compassionate treatment of pain required opioids. Ignoring the limitations and

cautions in their own drugs labels, Defendants: (a) overstated the benefits of chronic opioid therapy,

promised improvement in patients function and quality of life, and failed to disclose the lack of

evidence supporting long-term use; (b) trivialized or obscured their serious risks and adverse

outcomes, including the risk of addiction, overdose, and death; (c) overstated their superiority

compared with other treatments, such as other non-opioid analgesics, physical therapy, and other

alternatives; and (d) mischaracterized the difficulty of withdrawal from opioids and the prevalence of

withdrawal symptoms. There was, and is, no reliable scientific evidence to support Defendants

marketing claims, and there was, and is, a wealth of scientific evidence that these claims are simply

false. Defendants also deceptively and unfairly marketed the drugs for indications and benefits that

were outside of the drugs labels and not supported by substantial evidence.

16. Even Defendants KOLs initially were very cautious about whether opioids were

appropriate to treat chronic pain. Some of these same KOLs have since recanted their pro-opioid

marketing messages and acknowledged that Defendants marketing went too far. Yet despite the voices

of renowned pain specialists, researchers, and physicians who have sounded the alarm on the

overprescribing of opioids to treat chronic pain, Defendants continue to disseminate their misleading

and unfair marketing claims to this day.

5
 17. Defendants efforts were wildly successful. The United States is now awash in opioids.

In 2012, health care providers wrote 259 million prescriptions for opioid painkillers enough to

medicate every adult in America around the clock for a month. Twenty percent of all doctors visits in

2010 resulted in the prescription of an opioid, nearly double the rate in 2000. Opioidsonce a niche

drugare now the most prescribed class of drugsmore than blood pressure, cholesterol, or anxiety

drugs. While Americans represent only 4.6% of the worlds population, they consume 80% of the

opioids supplied around the world and 99% of the global hydrocodone supply. Together, opioids

generated $8 billion in revenue for drug companies in 2012.

18. It was Defendants marketingand not any medical breakthroughthat rationalized

prescribing opioids for chronic pain and opened the floodgates of opioid use and abuse. The result has

been catastrophic.

19. According to the U.S. Centers for Disease Control and Prevention (CDC), the nation

has been swept up in an opioid-induced public health epidemic. 5 According to the CDC,

prescription opioid use contributed to 16,651 overdose deaths nationally in 2010; 16,917 in 2011; and

16,007 in 2012. One Defendants own 2010 internal data shows that it knew that the use of

prescription opioids gave rise to 40% of drug-related emergency department visits in 2010 and 40% of

drug poisoning deaths in 2008, and that the trend of opioid poisonings was increasing from 1999-2008.

For every death, more than 30 individuals are treated in emergency rooms.

20. There is a direct correlation between the sales of opioids and deaths and

hospitilizations caused by opioids:6

5
CDC, Examining the Growing Problems of Prescription Drug and Heroin Abuse (Apr. 29, 2014),
http://www.cdc.gov/washington/testimony/2014/t20140429.htm (accessed May 30, 2017)
6
The Prescription Opioid and Heroin Crisis: A Public Health Approach to an Epidemic of Addiction., Annu. Rev.
Public Health 2015, accessed at http://www.annualreviews.org/doi/pdf/10.1146/annurev-publhealth-031914-122957

6
 Source: Annual Review of Public Health

21. As a direct result of the opioid and eventual heroin epidemic more than 17,000

Americans died from prescription opioids in 2015 and the number continues to steadily grow7:

7 https://www.bloomberg.com/news/articles/2017-06-28/life-after-opioids-drugmakers-scramble-to-concoct-
alternatives

7
 22. The State of Tennessee ranks second in the nation for number of painkillers prescribed

and fourth in overdose deaths. Healthcare professionals in Tennesee wrote 7.8 million prescriptions

in 2015, or 1.18 for every man, woman, and child in the State.8

23. The State of Tennessee has continued to see a dramatic increase in drug related deaths,

largely due to opioid medications. Tennessee Department of Health data shows that 1,451 people

died from drug overdoses in the state in 2015. This number has continued to steadily grow over the

years. In 2011, there were 1,062 deaths in Tenneesse

24. In 2016, drug overdose deaths hit a record high in Tennessee. According to a recent

report from the Department of Health, 1,631 Tennesseans died from drug overdoses in 2016. This

is the highest annual number in State history.9

25. In 2015, Shelby County experienced the most overdose deaths in the State. At least

188 Shelby residents died from drug overdoses in 2015.

26. Department of Health data shows that nearly 72 percent of the 1,451 drug overdoses in

2015 involved opioids.

27. Beginning in 2014, more people have died in Tennessee from opioid overdoses than in

car accidents or at the hands of guns.10

8
http://www.tennessean.com/story/news/health/2016/09/19/there-more-opioid-prescriptions-than-people-
tennessee/90358404/ (accesed 10/31/2017)
9
https://www.tn.gov/health/news/53332 (accessed September 26th, 2017)
10
http://www.tennessean.com/story/money/industries/health-care/2015/09/27/overdose-deaths-epidemic-
tennessee/32557463/

8
 28. Drug overdose deaths in Shelby County have continued to rise due to opioids11:

29. Shelby County has taken great steps to fight the opioid epidemic, all at a cost to the

County and its residents. The county has initiated programs such as the Memphis Area Prevention

Coalition and Count It! Lock It! Drop It!.12

30. But even these alarming statistics do not fully communicate the toll of prescription

opioid abuse on patients and their families.

31. The dramatic increase in opioid prescriptions to treat common chronic pain conditions

has resulted in a population of addicts who seek drugs from doctors. When turned down by one

physician, many of these addicts deploy increasingly desperate tacticsincluding doctor-shopping, use

of aliases, and criminal meansto satisfy their cravings.

11
*Centers for Disease Control and Prevention, National Center for Health Statistics. Underlying Cause of Death
1999-2015 on CDC WONDER Online Database, released December, 2016. Data are from the Multiple Cause of Death
Files, 1999-2015, as compiled from data provided by the 57 vital statistics jurisdictions through the Vital Statistics
Cooperative Program. Accessed at http://wonder.cdc.gov/ucd-icd10.html on Jul 26, 2017. ICD-10 Codes: X40X44,
X60X64, X85, and Y10Y14
12
https://www.memphisdailynews.com/news/2016/sep/22/efforts-expanding-locally-to-combat-opioid-addiction/

9
 32. Efforts by doctors to reverse course for a chronic pain patient already on opioids long-

term include managing the physical suffering and psychological distress a patient endures while

withdrawing from the drugs. This process is often thwarted by a secondary criminal market well-

stocked by a pipeline of drugs that is diverted to supply them. Even though they never would have

prescribed opioids in the first place, many doctors feel compelled to continue prescribing opioids to

patients who have become dependent on them.

33. According to the CDC, more than 12 million Americans age 12 or older have used

prescription painkillers without a prescription in 2010 13 , and adolescents are abusing opioids in

alarming numbers.

34. Opioid abuse has not displaced heroin, but rather triggered a resurgence in its use,

imposing additional burdens on the County and local agencies that address heroin use and addiction.

According to the CDC, the percentage of heroin users who also use opioid pain relievers rose from

20.7% in 2002-2004 to 45.2% in 2011-2013. In Shelby County in 2015, there were 141 heroin-related

emergency department admissions.14 Heroin produces a very similar high to prescription opioids, but

is often cheaper. While a single opioid pill may cost $10-$15 on the street, users can obtain a bag of

heroin, with multiple highs, for the same price. It is hard to imagine the powerful pull that would cause

a law-abiding, middle-aged person who started on prescription opioids for a back injury to turn to

buying, snorting, or injecting heroin, but that is the dark side of opioid abuse and addiction.

35. Dr. Robert DuPont, former director of the National Institute on Drug Abuse, opines

that opioids are more destructive than crack cocaine:

13
CDC, Presxcription Painkiller Overdoses in the US (Nov. 2011),
https://www.cdc.gov/vitalsigns/painkilleroverdoses/ (accessed May 30, 2017).
14
http://www.newsday.com/long-island/Shelby/Shelby-issues-warning-about-dangers-of-synthetic-
opioid-carfentanil-1.13156187 (accessed May 30, 2017).

10
 [Opioid abuse] is building more slowly, but its much larger. And the potential[] for

death, in particular, [is] way beyond anything we saw then. . . . [F]or pain medicine, a

one-day dose can be sold on the black market for $100. And a single dose can [be]

lethal to a non-patient. There is no other medicine that has those

characteristics. And if you think about that combination and the millions of people

who are using these medicines, you get some idea of the exposure of the society to the

prescription drug problem.15

36. Countless County residents suffer from chronic pain, which takes an enormous toll on

their health, their lives, and their families. These residents deserve both appropriate care and the ability

to make decisions based on accurate and complete information about treatment risks and benefits. But

Defendants deceptive and unfair marketing practices deprived County residents and their doctors of

the ability to make informed medical decisions and, instead, caused important, sometimes life-or-death

decisions to be made based not on science, but on hype. Defendants deprived patients, their doctors,

and health care payors of the chance to exercise informed judgment and subjected them to enormous

costs and suffering.

37. Defendants actions are not permitted or excused by the fact that their labels (with the

exception of Cephalons labels for Fentora and Actiq) may have allowed, or did not exclude, the use of

opioids for chronic non-cancer pain. The FDAs approval did not give Defendants license to

misrepresent the risks, benefits, or superiority of opioids. Indeed, what makes Defendants efforts

particularly nefariousand dangerousis that, unlike other prescription drugs marketed unlawfully in

the past, opioids are highly addictive controlled substances. Defendants deceptively and unfairly

15
Transcript, Use and Abuse of Prescription Painkillers, The Diane Rehm Show (Apr. 21, 2011),
http://thedianerehmshow.org/shows/2011-04-21/use-and-abuse-prescription-painkillers/transcript
(accessed May 30, 2017).

11
engaged a patient base thatphysically and psychologicallycould not turn away from their drugs,

many of whom were not helped by the drugs or were profoundly damaged by them.

38. Nor is Defendants causal role broken by the involvement of doctors. Defendants

marketing efforts were both ubiquitous and highly persuasive; their deceptive messages tainted

virtually every source doctors could rely on for information and prevented them from making

informed treatment decisions. Defendants targeted not only pain specialists, but also primary care

physicians (PCPs), nurse practitioners, physician assistants, and other non-pain specialists who were

even less likely to be able to assess the companies misleading statements. Defendants were also able to

callously manipulate what doctors wanted to believenamely, that opioids represented a means of

relieving their patients suffering and of practicing medicine more compassionately.

39. By 2014, nearly two million Americans were either abusing opioid medications or were

dependent on opioids.16 According to the CDC, opioids have created a public health epidemic as of

2016.17

40. Defendants marketing campaign has been extremely harmful and has cost American

lives including lives of residents of the County of Shelby. Deaths from prescription opioids have

quadrupled since 1999. From 2000 to 2014 nearly 500,000 people died from such overdoses; seventy-

eight Americans die everyday from opioid overdoses.18

16
CDC, Injury Prevention & Control: Opioid Overdose, Prescription Opioids, Addiction and
Overdose. Available at http://www.cdc.gov/drugoverdose/opioids/prescribed.html (accessed May
30, 2017).
17
CDC, Examining the Growing Problems of Prescription Drug and Heroin Abuse, (Apr. 29, 2014),
http://www.cdc.gov/washington/testimony/2014/ts0140429.htm (accessed May 30, 2017).
18
CDC, Injury Prevention & Control: Opioid Overdose, Understanding the Epidemic.

12
 41. It is estimated that, in 2012, 2.1 million people in the United States suffered from

substance use disorders related to prescription opioid pain relievers.19

42. The National Institutes of Health (NIH) not only recognizes the opioid abuse

problem, but also identifies Defendants aggressive marketing as a major cause: Several factors are

likely to have contributed to the severity of the current prescription drug abuse problem. They include

drastic increases in the number of prescriptions written and dispensed, greater social acceptability

for using medications for different purposes, and aggressive marketing by pharmaceutical companies.20 As

shown below, the drastic increases in the number of prescriptions written and dispensed and the

greater social acceptability for using medications for different purposes are not really independent

causative factors but are in fact the direct result of the aggressive marketing by pharmaceutical

companies.

43. The rising numbers of persons addicted to opioids have led not only to an increase in

health care costs to the County, and specifically the Plaintiff, but also a major increase in issues such as

drug abuse, diversion,21 and crimes related to obtaining opioid medications. The County of Shelby has

been severely and negatively impacted due to the fraudulent misrepresentations and omissions by

Defendants regarding the use and risk related to opioids. In fact, upon information and belief,

Defendants have been and continue to be aware of the high levels of diversion of their product.

44. Due to the conduct of the defendants, the commission of criminal acts have been

undertaken not only by individuals seeking to obtain opioids, but by physicians themselves. The

19
Substance Abuse and Mental Health Services Administration, Results from the 2012 National Survey on
Drug Use and Health: Summary of National Findings, NSDUH Series H- 46, HHS Publication No. (SMA)
13-4795. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2013.
20
Americas Addiction to Opioids: Heroin and Prescription Drug Abuse. Available at
http://www.drugabuse.gov/about-nida/legislative-activities/testimony-to- congress/2015/americas-
addiction-to-opioids-heroin-prescription-drug-abuse#_ftn2 (accessed May 30, 2017) (emphasis added).
21
The CDC defines using or obtaining opioids illegally as diversion.

13
actions of Defendants have created an environment where select physicians have sought to profit at

the expense of their patients who become addicted to opioid pain medications, often accepting cash

payments and ordering unnecessary medical tests, again at the expense of the County.

45. As a direct and foreseeable consequence of Defendants wrongful conduct, Plaintiff

has been required to spend millions of dollars each year in its efforts to combat the public nuisance

created by Defendants deceptive marketing campaign. Plaintiff has incurred and continues to incur

costs related to opioid addiction and abuse, including, but not limited to, health care costs, criminal

justice and victimization costs, social costs, and lost productivity costs. Defendants misrepresentations

regarding the safety and efficacy of long-term opioid use proximately caused injury to Plaintiff and its

residents.

JURISDICTION AND VENUE

46. This C o u r t has jurisdiction over this action pursuant to Tennessee Code of Civil

Procedure in that Defendants, by and through their authorized agents, servants and employees,

regularly transacted business in Tennesee, manufactured, supplied, and distributed opioids in Tennesee

and further through their acts and omissions tortuously caused injuries in Tennesee by engaging in a

persistent course of conduct in Tennesee which violated Tennesee law. Defendants derived substantial

revenue as the result of the opioids which were distributed to Tennesee physicians, patients, and others

and later consumed by persons then residing in Tennesee.

47. Venue is proper in Shelby County pursuant to Tennessee Code of Civil Procedure

20-4-102, 20-4-104.

48. This action is non-removable because there is incomplete diversity of residents and no

substantial federal question is presented.

14
 PARTIES

A. Plaintiff.

49. Shelby County is a municipality within the State of Tennessee. It is the largest county

in the State both in terms of population and geographic area. As of 2010, its population was about

927,000 residents. Plaintiff provides a wide range of services on behalf of its residents, including

services for families and children, public health, public assistance, law enforcement, and emergency

care. As mentioned above, Plaintiff also funds a health insurance plan for its county employees

B. Defendants.

50. Purdue Pharma L.P. is a limited partnership organized under the laws of Delaware with

its principal place of business in Stamford Connecticut. Purdue Pharma Inc. is a New York

corporation with its principal place of business in Stamford, Connecticut, and The Purdue Frederick

Company, Inc. is a New York corporation with its principal place of business in Stamford,

Connecticut (collectively, Purdue).

51. Purdue is primarily engaged in the manufacture, promotion, sale, and distribution of

opioids nationally and in Shelby County, including the following:

a. OxyContin (oxycodone hydrochloride extended release) is a Schedule II opioid

agonist22 tablet first approved in 1995 and indicated for the management of

pain severe enough to require daily, around-the-clock, long-term opioid

treatment and for which alternative treatment options are inadequate. Prior to

April 2014,23 OxyContin was indicated for the management of moderate to

22
An opioid agonist is a drug that activates certain opioid receptors in the brain. An antagonist, by
contrast, blocks the receptor and can also be used in pain relief or to counter the effect of an opioid
overdose.
23
The labels for OxyContin and other long-acting opioids were amended in response to a 2012
citizens petition by doctors. The changes were intended to clarify the existing obligation to make an

15
 severe pain when a continuous, around-the- clock opioid analgesic is needed

for an extended period of time.

b. MS Contin (morphine sulfate extended release) is a Schedule II opioid agonist

tablet first approved in 1987 and indicated for the management of pain severe

enough to require daily, around-the-clock, long-term opioid treatment and for

which alternative treatment options are inadequate. Prior to April 2014, MS

Contin was indicated for the management of moderate to severe pain when a

continuous, around-the-clock opioid analgesic is needed for an extended period

of time.

c. Dilaudid (hydromorphone hydrochloride) is a Schedule II opioid agonist first

approved in 1984 (injection) and 1992 (oral solution and tablet) and indicated

for the management of pain in patients where an opioid analgesic is

appropriate.

d. Dilaudid-HP (hydromorphone hydrochloride) is a Schedule II opioid agonist

injection first approved in 1984 and indicated for the relief of moderate-to-

severe pain in opioid-tolerant patients who require larger than usual doses of

opioids to provide adequate pain relief.

individualized assessment of patient needs. The petitioners also successfully urged that the revised
labels heighten the requirements for boxed label warnings related to addiction, abuse, and misuse by
changing Monitor for signs of misuse, abuse, and addiction to [Drug name] exposes users to risks
of addiction, abuse, and misuse, which can lead to overdose and death. Letter from Bob Rappaport,
Dir. Ctr. for Drug Evaluations & Res., Labeling Supplement and PMR [Post-Marketing Research] Required
(Sept. 10, 2013),
http://www.fda.gov/downloads/Drugs/DrugSafety/InformationbyDrugClass/UCM367697.pdf
(accessed May 30, 2017).

16
 e. Butrans (buprenorphine) is a Schedule III opioid partial agonist transdermal

patch first approved in 2010 and indicated for the management of pain severe

enough to require daily, around- the-clock, long-term opioid treatment and for

which alternative treatment options are inadequate. Prior to April 2014,

Butrans was indicated for the management of moderate to severe pain when a

continuous, around-the-clock opioid analgesic is needed for an extended period

of time.

f. Hysingla ER (hydrocodone bitrate) is a Schedule II opioid agonist tablet first

approved in 2014 and indicated for the management of pain severe enough to

require daily, around-the-clock, long-term opioid treatment and for which

alternative treatment options are inadequate.

g. Targiniq ER (oxycodone hydrochloride and naloxone hydrochloride) is a

Schedule II combination product of oxycodone, an opioid agonist, and

naloxone, an opioid antagonist, first approved in 2014 and indicated for the

management of pain severe enough to require daily, around- the-clock, long-

term opioid treatment and for which alternative treatment options are

inadequate.

52. OxyContin is Purdues largest-selling opioid. Since 2009, Purdues national annual sales

of OxyContin have fluctuated between $2.47 billion and $2.99 billion, up four-fold from 2006 sales of

$800 million. OxyContin constitutes roughly 30% of the entire market for analgesic drugs (i.e.,

painkillers).

53. In 2007, Purdue settled criminal and civil charges against it for misbranding OxyContin

and agreed to pay the United States $635 millionat the time one of the largest settlements with a

17
drug company for marketing misconduct.24 Pursuant to its settlement, Purdue operated under a

Corporate Integrity Agreement with the Office of Inspector General of the U.S. Department of Health

and Human Services, which required the company, inter alia, to ensure that its marketing was fair and

accurate, and to monitor and report on its compliance with the Agreement.

54. Defendant Teva Pharmaceuticals USA, Inc. (Teva USA) is a Delaware

corporation with its principal place of business in North Whales, Pennsylvania. Teva USA is a wholly

owned subsidiary of Teva Pharmaceutical Industries, Ltd. (Teva Ltd.), an Israeli corporation.

55. Defendant Cephalon, Inc. is a Delaware corporation with its principal place of business

in Frazer, Pennsylvania. In 2011, Teva Ltd. acquired Cephalon, Inc.

56. Teva USA and Cephalon, Inc. work together closely to market, manufacture, distribute

and sell Cephalon products in the United States. Teva USA conducts Teva Ltd.s sales and marketing

activities for Cephalon in the United States and has done so since Teva Ltd.s October 2011

acquisition of Cephalon. Teva USA holds out Actiq and Fentora as Teva products to the public. Teva

USA sells all former Cephalon branded products through its specialty medicines division. The FDA

approved prescribing information and medication guide, which is distributed with Cephalon opioids

marketed and sold in Shelby County, discloses that the guide was submitted by Teva USA, and directs

physicians to contact Teva USA to report adverse events. (Teva USA and Cephalon, Inc. collectively

are referred to herein as Cephalon.)

57. Cephalon has been in the business of manufacturing, selling, and distributing the

following opioids, nationally and in Shelby County:

a. Actiq (fentanyl citrate) is a Schedule II opioid agonist lozenge (lollipop) first

approved in 1998 and indicated for the management of breakthrough cancer

24
https://oig.hhs.gov/publications/docs/press/2007/SemiannualRelfall2007E.pdf (accessed May 30,
2017).

18
 pain in patients 16 years of age and older who are already receiving and who are

tolerant to opioid therapy for their underlying persistent cancer pain.

b. Fentora (fentanyl citrate) is a Schedule II opioid agonist buccal tablet (similar to

plugs of smokeless tobacco) first approved in 2006 and indicated for the

management of breakthrough pain in cancer patients 18 years of age and older

who are already receiving and who are tolerant to around-the-clock opioid

therapy for their underlying persistent cancer pain.

58. In November 1998, the FDA granted restricted marketing approval for Actiq, limiting

its lawful promotion to cancer patients experiencing pain. The FDA specified that Actiq should not be

marketed for off-label uses, stating that the drug must be prescribed solely to cancer patients. In 2008,

Cephalon pleaded guilty to a criminal violation of the Federal Food, Drug and Cosmetic Act for its

misleading promotion of Actiq and two other drugs, and agreed to pay $425 million in fines, damages,

and penalties.

59. Teva USA was in the business of selling generic opioids, including a generic form of

OxyContin from 2005 through 2009 nationally and within the County of Shelby.

60. On September 29, 2008, Cephalon entered into a five-year Corporate Integrity

Agreement with the Office of Inspector General of the U.S. Department of Health and Human

Services.25 The agreement, inter alia, required Cephalon to send doctors a letter advising them of the

settlement terms and gave them a means to report questionable conduct of its sales representatives;

disclose payments to doctors on its web site; and regularly certify that the company has an effective

compliance program.

25
https://www.justice.gov/archive/opa/pr/2008/September/08-civ-860.html (accessed May 30,
2017).

19
 61. Janssen Pharmaceuticals, Inc. is a Pennsylvania corporation with its principal place of

business in Titusville, New Jersey, and is a wholly owned subsidiary of Johnson & Johnson, a New

Jersey corporation with its principal place of business in New Brunswick, New Jersey. Janssen

Pharmaceuticals, Inc. was formerly known as (f/k/a) Ortho-McNeil- Janssen Pharmaceuticals, Inc.,

which in turn was formerly known as Janssen Pharmaceutica Inc. Defendant Ortho-Mcneil-Janssen

Pharmaceuticals, Inc., now known as Janssen Pharmaceuticals, Inc., is a Pennsylvania corporation with

its principal place of business in Titusville, New Jersey. Janssen Pharmaceutica, Inc., now known as

Janssen Pharmaceuticals, Inc., is a Pennsylvania corporation with its principal place of business in

Titusville, New Jersey. Johnson & Johnson is the only company that owns more than 10% of Janssen

Pharmaceuticals, Inc.s stock, and it corresponds with the FDA regarding Janssens products. Upon

information and belief, Johnson & Johnson controls the sale and development of Janssen

Pharmaceuticals drugs, and Janssen Pharmaceuticals, Inc.s profits inure to Johnson & Johnsons

benefit. (Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc., Janssen

Pharmaceutica, Inc., and Johnson & Johnson collectively are referred to herein as Janssen.)

62. Janssen manufactures, sells, and distributes a range of medical devices and

pharmaceutical drugs in Shelby County and the rest of the nation, including Duragesic (fentanyl),

which is a Schedule II opioid agonist transdermal patch first approved in 1990 and indicated for the

management of pain in opioid-tolerant patients, severe enough to require daily, around-the-clock,

long-term opioid treatment and for which alternative treatment options are inadequate.

63. Until January 2015, Janssen also developed, marketed, and sold Nucynta and Nucynta

ER:

a. Nucynta ER (tapentadol extended release) is a Schedule II opioid agonist tablet

first approved in 2011 and indicated for the management of pain severe

enough to require daily, around-the-clock, long-term opioid treatment and for

20
 which alternative treatment options are inadequate. Prior to April 2014,

Nucynta ER was indicated for the management of moderate to severe chronic

pain in adults [and] neuropathic pain associated with diabetic peripheral

neuropathy (DPN) in adults. The DPN indication was added in August 2012.

b. Nucynta (tapentadol) is a Schedule II opioid agonist tablet and oral solution

first approved in 2008 and indicated for the relief of moderate to severe acute

pain in patients 18 years of age or older.

64. Together, Nucynta and Nucynta ER accounted for $172 million in sales in 2014. 26

Prior to 2009, Duragesic accounted for at least $1 billion in annual sales.

65. Endo Health Solutions Inc. is a Delaware corporation with its principal place of

business in Malvern, Pennsylvania. Endo Pharmaceuticals, Inc. is a wholly-owned subsidiary of Endo

Health Solutions Inc. and is a Delaware corporation with its principal place of business in Malvern,

Pennsylvania. (Endo Health Solutions Inc. and Endo Pharmaceuticals, Inc. collectively are referred to

herein as Endo.)

66. Endo develops, markets, and sells prescription drugs, including the following opioids,

in Shelby County and nationally:

a. Opana ER (oxymorphone hydrochloride extended release) is a Schedule II

opioid agonist tablet first approved in 2006 and indicated for the management

of pain severe enough to require daily, around-the-clock, long-term opioid

treatment and for which alternative treatment options are inadequate. Prior to

April 2014, Opana ER was indicated for the relief of moderate to severe pain

26
http://www.prnewswire.com/news-releases/depomed-announces-closing-of-acquisition-of-us-
rights-to-nucynta-tapentadol-nucynta-er-tapentadol-extended-release-tablets-and-nucynta-tapentadol-
oral-solution-from-janssen-pharmaceuticals-inc-for-105-billion-300060453.html (accessed May 30,
2017)

21
 in patients requiring continuous, around-the-clock opioid treatment for an

extended period of time. On June 8, 2017, the FDA requested that Endo

Pharmaceuticals remove its opioid medication, reformulated Opana ER

(oxymorphone hydrochloride), from the market.27

b. Opana (oxymorphone hydrochloride) is a Schedule II opioid agonist tablet first

approved in 2006 and indicated for the relief of moderate to severe acute pain

where the use of an opioid is appropriate.

c. Percodan (oxycodone hydrochloride and aspirin) is a Schedule II opioid agonist

tablet first approved in 1950 and first marketed by Endo in 2004 and indicated

for the management of moderate to moderately severe pain.

d. Percocet (oxycodone hydrochloride and acetaminophen) is a Schedule II opioid

agonist tablet first approved in 1999 and first marketed by Endo in 2006 and

indicated for the relief of moderate to moderately severe pain.28

67. Opioids made up roughly $403 million of Endos overall revenues of $3 billion in 2012.

Opana ER yielded revenue of $1.15 billion from 2010 to 2013, and alone accounted for 10% of

Endos total revenue in 2012. Endo also manufactures and sells generic opioids nationally and in

Shelby County, both itself and through its subsidiary, Qualitest Pharmaceuticals, Inc., including generic

oxycodone, oxymorphone, hydromorphone, and hydrocodone products.

68. Allergan plc is a public limited company incorporated in Ireland with its principal place

of business in Dublin, Ireland. Actavis plc acquired Allergan plc in March 2015, and the combined

27
FDA Requests Removal of Opana ER for Risks Related to Abuse.
https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm562401.htm.
28
In addition, Endo marketed Zydone (hydrocodone bitartrate and acetaminophen), a Schedule III
opioid agonist tablet indicated for the relief of moderate to moderately severe pain, from 1998
through 2013. The FDAs website indicates this product is currently discontinued, but it appears on
Endos own website.

22
company changed its name to Allergan plc in March 2015. Prior to that, Watson Pharmaceuticals, Inc.

acquired Actavis, Inc. in October 2012; the combined company changed its name to Actavis, Inc. in

January 2013 and then to Actavis plc in October 2013. Watson Laboratories, Inc. is a Nevada

corporation with its principal place of business in Corona, California, and is a wholly owned subsidiary

of Allergan plc (f/k/a Actavis, Inc., f/k/a Watson Pharmaceuticals, Inc.). Actavis Pharma, Inc. (f/k/a

Actavis, Inc.) is a Delaware corporation with its principal place of business in New Jersey, and was

formerly known as Watson Pharma, Inc. Actavis LLC is a Delaware limited liability company with its

principal place of business in Parsippany, New Jersey. Each of these defendants is owned by Allergan

plc, which uses them to market and sell its drugs in the United States. Upon information and belief,

Allergan plc exercises control over these marketing and sales efforts, and profits from the sale of

Allergan/Actavis products ultimately inure to its benefit. (Allergan plc, Actavis plc, Actavis, Inc.,

Actavis LLC, Actavis Pharma, Inc., Watson Pharmaceuticals, Inc., Watson Pharma, Inc., and Watson

Laboratories, Inc. hereinafter collectively are referred to as Actavis.)

69. Actavis engages in the business of marketing and selling opioids in Shelby County and

across the country, including the branded drugs Kadian and Norco, a generic version of Kadian, and

generic versions of Duragesic and Opana. Kadian (morphine sulfate extended release) is a Schedule II

opioid agonist capsule first approved in 1996 and indicated for the management of pain severe

enough to require daily, around-the-clock, long-term opioid treatment and for which alternative

treatment options are inadequate. Prior to April 2014, Kadian was indicated for the management of

moderate to severe pain when a continuous, around-the-clock opioid analgesic is needed for an

extended period of time. Actavis acquired the rights to Kadian from King Pharmaceuticals, Inc., on

December 30, 2008 and began marketing Kadian in 2009.

70. Insys Therapeutics, Inc. (Insys) is a Delaware corporation with its principal place of

business in Chandler, Arizona.

23
 71. Insys develops, markets, and sells prescription drugs, including Subsys, a sublingual

spray of fentanyl, in Shelby County and nationally.

72. Defendant McKesson Corporation (McKesson) is a Delaware corporation with its

principal place of business in San Francisco, California.

73. Defendant McKesson had a net income in excess of $1.5 Billion in 2015.

74. Defendant McKesson distributes pharmaceuticals to retail pharmacies and institutional

providers to customers in all 50 states, including Tennessee State and the County of Shelby.

75. Upon information and belief, defendant McKesson is a pharmaceutical distributor

licensed to do business in Tennesseee State.

76. Defendant McKesson is the largest pharmaceutical distributor in North America.

77. Upon information and belief, McKesson delivers one-third of all pharmaceuticals used

in North America.

78. Defendant McKesson does substantial business in the State of Tennessee and Shelby

County.

79. Defendant Cardinal Health Inc. (Cardinal) is an Ohio Corporation with its principal

place of business in Dublin, Ohio.

80. Defendant Cardinal distributes pharmaceuticals to retail pharmacies and institutional

providers to customers in all 50 states, including Tennesee and Shelby County.

81. Upon information and belief, defendant Cardinal is a pharmaceutical distributor

licensed to do business in Tennessee State.

82. Defendant Cardinal does substantial business in the State of Tennessee and Shelby

County.

83. Upon information and belief, defendant Cardinal is one of the largest distributors of

opioid pain medications in Shelby Country, including Tenneseee State and the County of Shelby.

24
 84. Upon information and belief, Defendant AmerisourceBergen Drug Corporation

(Amerisource) is a Delaware Corporation with its principal place of business in Chesterbrook,

Pennsylvania.

85. Defendant Amerisource does substantial business in the State of Tennessee and Shelby

County.

86. Upon information and belief, defendant Amerisource is a pharmaceutical distributor

licensed to do business in Tennessee State.

87. Defendant Amerisource distributes pharmaceuticals to retail pharmacies and

institutional providers to customers in all 50 states, including Tennessee State in Shelby County.

88. Upon information and belief, defendant Amerisource is one of the largest distributors

of opioid pain medications in the Country, including Tennessee State.

89. The three pharmaceutical distributor defendants, Cardinal, Amerisource, and Mckesson

(hereinafter Distributor Defendants) are three of the largest opioid distributors in Shelby County.

90. The Distributor Defendants purchased opioids from manufacturers, such as the named

defendants herein, and sold them to pharmacies throughout Shelby County .

91. The Distributor Defendants played an integral role in the chain of opioids being

distributed throughout Shelby County.

92. Defendant Teneseee CVS LLC (CVS) is a Tennessee Limited Liability Corporation.

Its principal place of business is located at 825n Main Street, Shelbyville, TN 37160, Tennessee 37160.

CVS has locations across Teneesee, including in Shelby County, which distributes opioid pain

medications, many of which enter the black market.

93. The CVS chain has paid hundreds of thousands of dollars in fine for failing to properly

fill and monitor opioid prescriptions and filling invalid prescriptions, allowing pills to enter the black

market.

25
 94. Defendant Rite Aide of Tennessee (Rite Aide) is a Tennessee Corporation. Its principal

place of business is located at 3500 Ramill Road, Memphis 28128. Rite Aide has locations across

Tennesee, including in Shelby County, which distributes opioid pain medications, many of which enter

the black market.

95. Rite Aide has also paid large fines to the DEA involving the prescription of opioids.

96. Russell Portenoy, M.D., is an individual residing in New York. Defendant Dr. Portenoy

is a physician licensed to practice medicine in the state of New York. Dr. Portenoy was instrumental in

promoting opioids for sale and distribution nationally and in Shelby County.

97. Perry Fine, M.D., is an individual residing in Utah. Dr. Fine was instrumental in

promoting opioids for sale and distribution nationally and in Shelby County.

98. Scott Fishman, M.D., is an individual residing in California. Dr. Fishman was

instrumental in promoting opioids for sale and distribution nationally and in Shelby County.

99. Lynn Webster, M.D., is an individual residing in Utah. Dr. Webster was instrumental

in promoting opioids for sale and distribution nationally and in Shelby County.

100. Defendant CENTER POINTE MEDICAL CLINIC, LLC ("CEN1ER POINTE") is a

Tennessee Limited Liability Corporation. Its principal place of business is located at 2020 Brookside

Drive, Suite 20, Kingsport, Tennessee 37660. It can be served through its registered agent: Ina Kay

Bone, 2020 Brookside Drive, Ste 20, Kingsport TN 37760. CENTER POINTE participates in the

illegal drug market for opioids.

101. Defendant ELIZABETH ANN BOWERS CAMPBELL is a resident of Sullivan

County, Tennessee. She may be served with process at 1390 Milligan Highway, Johnson City, TN

37601, which is located in Tennessee House District 6. She participated in the illegal drug market for

opioids.

26
 102. Defendant PAMELA MOORE is a resident of Hawkins County, Tennessee. She may

be served with process at 230 Union Hollow Rd., Churchill, TN 37642. She participated in the illegal

drug market for opioids.

FACTS RELEVANT TO ALL CAUSES OF ACTION

A. Background on Pain Medicine.

1. Safe and Effective Treatment of Chronic Pain Centers on Informed Risk

Management.

103. The practice of medicine centers on informed risk management. Prescribers must

weigh the potential risks and benefits of each treatment option, as well as the risk of non-treatment.

104. Accordingly, the safe and effective treatment of chronic pain requires that a physician

be able to weigh the relative risks of prescribing opioids against both (a) the relative benefits that may

be expected during the course of opioid treatment and (b) the risks and benefits of alternatives.

105. This bedrock principle of full disclosure is particularly important in the context of

chronic opioid therapy because of the risk that patients will become physically and psychologically

dependent on the drugs, finding it difficult to manage or terminate their use.

106. The FDA-approved drug labels on each of Defendants opioids do not attempt to

advise physicians how to maximize the benefits and minimize the risks for patients on long-term

chronic opioid therapy. The labels contain no dosing cap above which it would be unsafe for any

doctor to prescribe to any patient. Nor do any of the labels provide a duration limit, after which the

risks to a patient might increase. Thus, doctors and patients rely more heavily on educational materials

such as treatment guidelines, CMEs, and scientific and patient education articles and websites to

inform their treatment decisions.

2. Opioid Use Is Associated with Known and Substantial Risks.

27
 107. Opium has been recognized as a tool to relieve pain for millennia; so has the

magnitude of its potential for abuse, addiction and its dangers. Opioids are related to illegal drugs like

opium and heroin. In fact, types of fentanyl, a widely-distributed opioid in the United States, have now

been made illegal in China.

108. During the Civil War, opioids, then known as "tinctures of laudanum," gained

popularity among doctors and pharmacists for their ability to reduce anxiety and relieve pain

particularly on the battlefield and they were popularly used in a wide variety of commercial products

ranging from pain elixirs to cough suppressants and beverages. By 1900, an estimated 300,000 people

were addicted to opioids in the United States.29 Many doctors prescribed opioids solely to avoid

patients withdrawal. Both the numbers of opioid addicts and the difficulty in weaning patients from

opioids made clear their highly addictive nature.

109. Due to concerns about their addictive properties, opioids have been regulated at the

federal level as controlled substances by the U.S. Drug Enforcement Administration (DEA) since

1970. The labels for scheduled opioid drugs carry black box warnings of potential addiction and

[s]erious, life-threatening, or fatal respiratory depression, as the result of an excessive dose.

110. Studies and articles from the 1970s and 1980s also made the reasons to avoid opioids

clear. Scientists observed negative outcomes from long-term opioid therapy in pain management

programs; opioids mixed record in reducing pain long-term and failure to improve patients function;

greater pain complaints as most patients developed tolerance to opioids; opioid patients diminished

ability to perform basic tasks; their inability to make use of complementary treatments like physical

29
Substance Abuse and Mental Health Services Administration, Medication-Assisted Treatment
for Opioid Addiction in Opioid Treatment Programs, Treatment Improvement Protocol (TIP
Services), No. 43 (2005).

28
therapy due to the side effects of opioids; and addiction. Leading authorities discouraged, and even

prohibited, the use of opioid therapy for chronic pain.

111. Discontinuing opioids after more than just a few weeks of therapy will cause most

patients to experience withdrawal symptoms. These withdrawal symptoms include: severe anxiety,

nausea, vomiting, headaches, agitation, insomnia, tremors, hallucinations, delirium, pain, and other

serious symptoms, which may persist for months after a complete withdrawal from opioids,

depending on how long the patient had been using opioids.

112. When under the continuous influence of opioids over time, patients grow tolerant to

their analgesic effects. As tolerance increases, a patient typically requires progressively higher doses to

obtain the same levels of pain reduction to which he or she has become accustomed up to and

including doses that are frighteningly high.30 At higher doses, the effects of withdrawal are more

substantial, thus leaving a patient at a much higher risk of addiction. A patient can take the opioids at

the continuously escalating dosages to match pain tolerance and still overdose at recommended levels.

113. Dr. Andrew Kolodny, Chief Medical Officer for Phoenix House, a national addiction

treatment program, has explained the effect of opioids as akin to hijack[ing] the brains reward

system, which in turn convinces a user that the drug is needed to stay alive.31 A patients fear of the

unpleasant effects of discontinuing opioids combined with the negative reinforcement during a period

of actual withdrawal can drive a patient to seek further opioid treatmenteven where ineffective or

detrimental to quality of lifesimply to avoid the deeply unpleasant effects of withdrawal.

30
M. Katz, Long-term Opioid Treatment of Nonmalignant Pain: A Believer Loses His
Faith, 170(16) Archives of Internal Med. 1422 (2010).
31
David Montero, Actors Death Sows Doubt Among O.C.s Recovering Opioid Addicts, The Orange Cnty.
Reg. (Feb. 3, 2014), http://www.ocregister.com/articles/heroin-600148-shaffer-hoffman.html
(accessed May 30, 2017).

29
 114. Patients that receive high doses of opioids as part of long-term opioid therapy are three

to nine times more likely to suffer an overdose from opioid-related causes than those on low doses. As

compared to available alternative pain remedies, scholars have suggested that tolerance to the

respiratory depressive effects of opioids develops at a slower rate than tolerance to analgesic effects.

Accordingly, the practice of continuously escalating doses to match pain tolerance can, in fact, lead to

an overdose even when opioids are taken as recommended.

115. Further, a potential side effect from chronic use [of opioids] can be abuse and

addiction . . . . [i]n fact, correct use and abuse of these agents are not polar oppositesthey are

complex, inter-related phenomena. 32 It is very difficult to tell whether a patient is physically

dependent, psychologically dependent, or addicted. Drug-seeking behaviors, which are signs of

addiction, will exist and emerge when opioids are suddenly not available, the dose is no longer

effective, or tapering of a dose is undertaken too quickly.

116. Studies have shown that between 30% and 40% of long-term users of opioids

experience problems with opioid use disorders.33

117. Each of these risks and adverse effectsdependence, tolerance, and addictionis fully

disclosed in the labels for each of Defendants opioids (though, as described below, not in Defendants

marketing). 34 Prior to Defendants deceptive marketing scheme, each of these risks was well-

recognized by doctors and seen as a reason to use opioids to treat chronic pain sparingly and only after

other treatments had failed.

32
Wilson M. Compton & Nora D. Volkow, Major Increases in Opioid Analgesic Abuse in the United States:
Concerns and Strategies, 81(2) Drug & Alcohol Dependence 103, 106 (2006).
33
Joseph A. Boscarino et al., Risk factors for drug daependence among out-patients on opioid therapy in a large US
health-care system, 105(10) Addiction 1776 ( 2010); Joseph A. Boscarino et al., Prevalence of Prescription
Opioid-Use Disorder Among Chronic Pain Patients: Comparison of the DSM-5 vs. DSM-4 Diagnostic Criteria,
30(3) Journal of Addictive Diseases 185 (2011).
34
For example, Purdues OxyContin label (October 5, 2011) states: Physical dependence and
tolerance are not unusual during chronic opioid therapy.

30
 118. Opioids vary by duration. Long-acting opioids, such as Purdues OxyContin and MS

Contin, Janssens Nucynta ER and Duragesic, Endos Opana ER, and Actaviss Kadian, are designed

to be taken once or twice daily and are purported to provide continuous opioid therapy for, in

general, 12 hours. Short-acting opioids, such as Cephalons Actiq and Fentora, are designed to be

taken in addition to long-acting opioids to address episodic pain and provide fast-acting,

supplemental opioid therapy lasting approximately 4 to 6 hours.

119. Defendants promoted the idea that pain should be treated by taking long-acting

opioids continuously and supplementing them with short-acting, rapid- onset opioids for episodic pain.

120. Defendant Purdue was aware that its drug OxyContin did not provide pain relief for up

to 12 hours. Purdue was also aware of the risk that patients would then take additional pain

medications, beyond what was prescribed, to make of up for that gap in time. Despite this knowledge,

Purdue continued to market OxyContin as lasting for 12 hours.

121. While it was once thought that long-acting opioids would not be as susceptible to

abuse and addiction as short-acting ones, this view has been discredited. OxyContins label now states,

as do all labels of Schedule II long-acting opioids, that the drug exposes users to risks of addiction,

abuse, and misuse, which can lead to overdose and death. The FDA has required extended release

and long-acting opioids to adopt Risk Evaluation Mitigation Strateg[ies] on the basis that they

present a serious public health crisis of addiction, overdose, and death.35

122. In 2013, in response to a petition to restrict the labels of long-acting opioid products,

the FDA noted the grave risks of opioids, the most well-known of which include addiction,

35
FDA, Risk Evaluation and Mitigation Strategy (REMS) for Extended-Release and Long-Acting
Opioids (last updated Oct. 9, 2014),
http://www.fda.gov/Drugs/DrugSafety/InformationbyDrugClass/ucm163647.htm (accessed May 30,
2017).

31
overdose, and even death.36 The FDA further warned that [e]ven proper use of opioids under

medical supervision can result in life-threatening respiratory depression, coma, and death.37 The

FDA required thatgoing forwardopioid makers of long-acting formulations clearly communicate

these risks in their labels. Thus, the FDA confirmed what had previously been accepted practice in the

treatment of pain that the adverse outcomes from opioid use include addiction, unintentional

overdose, and death and that long-acting or extended release opioids should be used only when

alternative treatments are inadequate.38

123. Notably, in reaching its conclusion, the FDA did not rely on new or otherwise

previously unavailable scientific studies regarding the properties or effects of opioids.

124. The FDA-approved labels on each of Defendants opioids do not attempt to advise

physicians on how to maximize the benefits and minimize the risks for patients on long term opioid

therapy. The labels contain no dosage cap above which it would be unsafe to prescribe to any patient.

Nor do they provide a duration limit. Doctors and patients rely heavily on education materials, such as

treatment guidelines, CMEs, and scientific and patient education articles and websites, to inform their

treatment decisions.

125. On July 25, 2012, the Physician For Responsible Opioid Prescribing (PROP), a non-

profit organization made up of doctors and other health care professionals, petitioned the FDA to

change the labeling of opioid medications. The petition was signed by thirty-seven physicians located

nationwide. In its letter to the FDA, the group stated that an increasing body of medical literature

36
Letter from Janet Woodcock, M.D., Dir., Ctr. for Drug Eval. & Res., to Andrew Kolodny, M.D.,
Pres. Physicians for Responsible Opioid Prescribing, Re Docket No. FDA-2012-P-0818 (Sept. 10,
2013).
37
Id.
38
Id. at 7 (emphasis in original).

32
suggests that long term-use of opioids may be neither safe nor effective for many patients, especially

when prescribed in high doses.39

126. In its petition, PROP also stated that many clinicians are under the false impression

that chronic opioid therapy (COT) is an evidence-based treatment for chronic non-cancer pain and

that these misconceptions lead to overprescribing and high dose prescribing. It was also their

opinion that the current label on opioid analgesics does not comply with [FDA law].

127. As the basis for its petition, PROP provided Statements of Scientific Basis for

Petition which provided a list of detailed reports and studies proving the risks of opioid medications,

the high risk of addiction, the exaggerated and false benefits, and further medically backed reasons to

change the labelling of opioid medications to reduce prescribing.

128. In 2013, in response to a petition to require manufacturers to strengthen warnings

on the labels of long-acting opioid products, the FDA warned of the grave risks of opioids,

including addiction, overdose, and even death. The FDA further warned, [e]ven proper use of

opioids under medical supervision can result in life- threatening respiratory depression, coma, and

death. Because of those grave risks, the FDA said that long-acting or extended release opioids

should be used only when alternative treatments are inadequate.40 The FDA required that going

forward opioid makers of long-acting formulations clearly communicate these risks on their labels.

129. In 2016, the FDA expanded its warnings for immediate-release opioid pain

medications, requiring similar changes to the labeling of immediate-release for opioid pain medications

as it had for extended release opioids in 2013. The FDA also required several additional safety-labeling

39
July 25, 2012 letter from PROP to FDA, accessed at http://www.citizen.org/documents/2048.pdf
on May 30, 2017.
40
Letter from Janet Woodcock, M.D., Dir., Ctr. For Drug Eval. & Res., to Andrew Kolodny,
M.D., Pres. Physicians for Responsible Opioid Prescribing, Re Docket No. FDA-2012-P-0818 (Sept. 10,
2013) (emphasis in original).

33
changes across all prescription opioid products to include additional information on the risk of these

medications.41

130. The facts on which the FDA relied in 2013 and 2016 were well known to

Defendants for many years since they began marketing these drugs.

3. Long-Term Opioid Use Benefits Are Unproven and Contradicted.

131. Despite the fact that opioids are now routinely prescribed, there has never been

evidence of their safety and efficacy for long-term use.

132. Defendants have always been aware of these gaps in knowledge. While promoting

opioids to treat chronic pain, Defendants have failed to disclose the lack of evidence to support their

long-term use and have failed to disclose the contradictory evidence that chronic opioid therapy

actually makes patients sicker.

133. There are no controlled studies of the use of opioids beyond 16 weeks, and no

evidence that opioids improve patients pain and function long-term. The first random, placebo-

controlled studies appeared in the 1990s, and revealed evidence only for short-term efficacy and only

in a minority of patients.42

134. A 2004 report reviewed 213 randomized, controlled trials of treatments for cancer pain

and showed that, while opioids had short-term efficacy, the data was insufficient to establish long-term

effectiveness. Subsequent reviews of the use of opioids for cancer and non-cancer pain consistently

41
FDA announces enhanced warnings for immediate-release opioid pain medications related to risks
of misuse, abuse, addiction, overdose and death. Available at
http://www.fda.gov/newsevents/newsroom/pressannouncements/ucm491739.htm (accessed May
30, 2017).

42
Nathaniel Katz, Opioids: After Thousands of Years, Still Getting to Know You, 23(4) Clin J. Pain 303
(2007); Roger Chou et al., Research Gaps on Use of Opioids for Chronic Noncancer Pain, 10(2) J. Pain 147
(2009).

34
note the lack of data to assess long-term outcomes. For example, a 2007 systematic review of opioids

for back pain concluded that opioids have limited, if any, efficacy for back pain and that evidence did

not allow judgments regarding long-term use. Similarly, a 2011 systematic review of studies for non-

cancer pain found that evidence of long-term efficacy is poor. One year later, a similar review reported

poor evidence of long-term efficacy for morphine, tramadol, and oxycodone, and fair evidence for

transdermal fentanyl (approved only for use for cancer pain).

135. On the contrary, evidence exists to show that opioid drugs are not effective to treat

chronic pain, and may worsen patients health. A 2006 study-of-studies found that opioids as a class

did not demonstrate improvement in functional outcomes over other non-addicting treatments. Most

notably, it stated: For functional outcomes, the other analgesics were significantly more effective than

were opioids.43 Another review of evidence relating to the use of opioids for chronic pain found that

up to 22.9% of patients in opioid trials dropped out before the study began because of the intolerable

effects of opioids, and that the evidence of pain relief over time was weak.

136. Endos own research shows that patients taking opioids, as opposed to other

prescription pain medicines, report higher rates of obesity (30% to 39%); insomnia (9% to 22%); and

self-described fair or poor health (24% to 34%).

137. Increasing duration of opioid use is strongly associated with an increasing prevalence of

mental health conditions (depression, anxiety, post-traumatic stress disorder, or substance abuse),

increased psychological distress, and greater health care utilization.

43
Andrea D. Furlan et al., Opioids for chronic noncancer pain: a meta-analysis of effectiveness and side effects,
174(11) Can. Med. Assn J. 1589 (2006). This same study revealed that efficacy studies do not typically
include data on opioid addiction. In many cases, patients who may be more prone to addiction are pre-
screened out of the study pool. This does not reflect how doctors actually prescribe the drugs, because
even patients who have past or active substance use disorders tend to receive higher doses of opioids.
Karen H. Seal, Association of Mental Health Disorders With Prescription Opioids and High-Risk Opioids in US
Veterans of Iraq and Afghanistan, 307(9) J. Am. Med. Assn 940 (2012).

35
 138. As a pain specialist noted in an article titled Are We Making Pain Patients Worse?,

[O]pioids may work acceptably well for a while, but over the long term, function generally declines, as

does general health, mental health, and social functioning. Over time, even high doses of potent

opioids often fail to control pain, and these patients are unable to function normally.44

139. This is true both generally and for specific pain-related conditions. Studies of the use of

opioids long-term for chronic lower back pain have been unable to demonstrate an improvement in

patients function. Conversely, research consistently shows that long-term opioid therapy for patients

who have lower back injuries does not help patients return to work or to physical activity. This is due

partly to addiction and other side effects.

140. As many as 30% of patients who suffer from migraines have been prescribed opioids

to treat their headaches. Users of opioids had the highest increase in the number of headache days per

month, scored significantly higher on the Migraine Disability Assessment (MIDAS), and had higher

rates of depression, compared to non-opioid users. A survey by the National Headache Foundation

found that migraine patients who used opioids were more likely to experience sleepiness, confusion,

and rebound headaches, and reported a lower quality of life than patients taking other medications.

141. The lack of evidence for the efficacy of opioid use long-term has been well-

documented nationally in the context of workers compensation claims, where some of the most

detailed data exists. Claims involving workers who take opioids are almost four times as likely to reach

costs of over $100,000 than claims without opioids, as these patients suffer greater side effects and are

slower to return to work. Even adjusting for injury severity and self-reported pain score, taking an

opioid for more than seven days and receiving more than one opioid prescription increased the risk

that the patient would be on work disability one year later. A prescription for opioids, as the first

treatment for a workplace injury, doubled the average length of the claim.

44
Andrea Rubenstein, Are we making pain patients worse?, Sonoma Medicine (Fall 2009).

36
 4. Defendants Impact on the Perception and Prescribing of Opioids.

142. Before Defendants began the marketing campaign complained of herein, generally

accepted standards of medical practice dictated that opioids should only be used short-term, for

instance, for acute pain, pain relating to recovery from surgery, or for cancer or palliative care. In

those instances, the risks of addiction are low or of little significance.

143. In 1986, the World Health Organization (WHO) published an analgesic ladder for

the treatment of cancer pain. 45 The WHO recommended treatment with over-the- counter or

prescription acetaminophen or non-steroidal anti-inflammatory drugs (NSAIDs) first, and then the

use of unscheduled or combination opioids, and then stronger (Schedule II or III) opioids if pain

persisted. The WHO ladder pertained only to the treatment of cancer pain, and did not contemplate

the use of narcotic opioids for chronic painbecause the use of opioids for chronic pain was not

considered appropriate medical practice at the time.

144. Studies and articles from the 1970s and 1980s made the reasons to avoid opioids clear.

Scientists observed negative outcomes from long-term opioid therapy in pain management programs:

opioids mixed record in reducing pain long-term and failure to improve patients function; greater

pain complaints as most patients developed tolerance to opioids; opioid patients diminished ability to

perform basic tasks; their inability to make use of complementary treatments like physical therapy due

to the side effects of opioids; and addiction. Leading authorities discouraged, or even prohibited, the

use of opioid therapy for chronic pain.

145. In 1986, Defendant Dr. Russell Portenoy, who later became Chairman of the

Department of Pain Medicine and Palliative Care at Beth Israel Medical Center in New York, while at

the same time serving as a top spokesperson for drug companies, published an article reporting that

45
http://apps.who.int/iris/bitstream/10665/43944/1/9241561009_eng.pdf (accessed May 30, 2017)

37
[f]ew substantial gains in employment or social function could be attributed to the institution of

opioid therapy.46

146. Writing in 1994, Dr. Portenoy described the prevailing attitudes regarding the dangers

of long-term use of opioids:

The traditional approach to chronic nonmalignant pain does not accept the
long-term administration of opioid drugs. This perspective has been justified by
the perceived likelihood of tolerance, which would attenuate any beneficial
effects over time, and the potential for side effects, worsening disability, and
addiction. According to conventional thinking, the initial response to an opioid
drug may appear favorable, with partial analgesia and salutary mood changes,
but adverse effects inevitably occur thereafter. It is assumed that the motivation
to improve function will cease as mental clouding occurs and the belief takes
hold that the drug can, by itself, return the patient to a normal life. Serious
management problems are anticipated, including difficulty in discontinuing a problematic
therapy and the development of drug seeking behavior induced by the desire to maintain
analgesic effects, avoid withdrawal, and perpetuate reinforcing psychic effects. There is an
implicit assumption that little separates these outcomes from the highly aberrant behaviors
associated with addiction.47

According to Portenoy, these problems could constitute compelling reasons to reject long term

opioid administration as a therapeutic strategy in all but the most desperate cases of chronic

nonmalignant pain.48

147. For the reasons outlined by Dr. Portenoy, and in the words of one researcher from the

Harvard Medical School, it did not enter [doctors] minds that there could be a significant number of

46
Russell K. Portenoy & Kathleen M. Foley, Chronic Use of Opioid Analgesics in Non-Malignant
Pain: Report of 38 cases, 25(2) Pain 171 (1986).
47
Russell K. Portenoy, Opioid Therapy for Chronic Nonmalignant Pain: Current Status, 1 Progress in Pain
Res. & Mgmt. 247 (1994) (emphasis added).
48
Id.

38
chronic pain patients who were successfully managed with opioids. 49 Defendants changed that

perception.

B. Defendants Promoted Their Branded Products Through Direct Marketing to

Prescribers and Consumers.

148. Defendants direct marketing proceeded on two tracks, serving two related purposes.

First, Defendants worked through branded and unbranded marketing to build confidence in long-term

opioid use by overstating its benefits and downplaying its risks, thereby expanding the chronic pain

market. In addition, Defendants worked through their own staffs of sales representatives, physician

speakers whom those representatives recruited, and advertising in medical journals to claim their share

of that broader market. Defendants directed all of this activity through carefully designed marketing

plans that were based on extensive research into prescriber habits and the efficacy of particular sales

approaches and messages.

1. Defendants Relied Upon Branded Advertisements.

149. Defendants engaged in widespread advertising campaigns touting the benefits of their

branded drugs. Defendants published print advertisements in a broad array of medical journals,

ranging from those aimed at specialists, such as the Journal of Pain and Clinical Journal of Pain, to journals

with wider medical audiences, such as the Journal of the American Medical Association. Defendants

advertising budgets peaked in 2011, when they collectively spent more than $14 million on the medical

journal advertising of opioids, nearly triple what they spent in 2001. The 2011 total includes $8.3

million by Purdue, $4.9 million by Janssen, and $1.1 million by Endo.50

49
Igor Kissin, Long-term opioid treatment of chronic nonmalignant pain: unproven efficacy and neglected safety?, 6 J.
Pain Research 513, 514 (2013) (quoting Loeser JD, Five crises in pain management, 20(1) Pain Clinical
Updates 1-4 (2012).
50
In 2011, Actavis spent less than $100,000 on such advertising, and Cephalon spent nothing. These
companies medical journal advertising peaked earlier, with Actavis spending $11.7 million in 2005, and
Cephalon spending about $2 million in each of 2007 and 2008.

39
 150. A number of these branded advertisements deceptively portrayed the benefits of opioid

therapy for chronic pain. As just one example, a 2005 Purdue advertisement for OxyContin that ran in

the Journal of Pain touted the drug as an around-the-clock analgesic . . . for an extended period of

time. The advertisement featured a man and boy fishing and proclaimed that There Can Be Life

With Relief. This depiction falsely implied that OxyContin provides both effective long-term pain

relief and functional improvement, claims that, as described below, are unsubstantiated and

contradicted in medical literature.

2. Defendants Relied Upon Their Sales Forces and Recruited Physician Speakers.

151. Each Defendant promoted the use of opioids for chronic pain through detailers

sales representatives who visited individual physicians and their staff in their officesand small group

speaker programs. By establishing close relationships with doctors, Defendants sales representatives

were able to disseminate their misrepresentations in targeted, one-on-one settings that allowed them to

differentiate their opioids and to address individual prescribers concerns about prescribing opioids for

chronic pain. Representatives were trained on techniques to build these relationships, with Actavis

even rolling out an Own the Nurse kit as a door opener to time with doctors.

152. Defendants developed sophisticated plans to select prescribers for sales visits based on

their specialties and prescribing habits. In accordance with common industry practice, Defendants

purchase and closely analyze prescription sales data from IMS Health. This data allows them to

precisely track the rates of initial prescribing and renewal by individual doctors, which in turn allows

them to target, tailor, and monitor the impact of their appeals.

153. Defendants, in particular, relied upon influence mapping, i.e.., using decile rankings

or similar breakdowns to identify the high-volume prescribers on whom detailing would have the

greatest sales impact. Endo, for example, identified prescribers representing 30% of its nationwide

40
sales volume and planned to visit these physicians three times per month. Defendants also closely

monitored doctors prescribing after a sales representatives visit to allow them to refine their planning

and messaging and to evaluate and compensate their detailers.

154. Defendants sales representatives have visited hundreds of thousands of doctors,

including thousands of visits to Shelby County prescribers, and as described herein, spread

misinformation regarding the risks, benefits, and superiority of opioids for the treatment of chronic

pain. This misinformation includes deceptive and unfair claims regarding the risks of opioids for

chronic pain, particularly the risks of addiction, withdrawal, and high doses, as well as the benefits.

155. Each Defendant carefully trained its sales representatives to deliver company-approved

messages designed to generate prescriptions of that companys drugs specifically, and opioids in

general. Pharmaceutical companies exactingly direct and monitor their sales representativesthrough

detailed action plans, trainings, tests, scripts, role-plays, supervisor tag-alongs, and other meansto

ensure that individual detailers actually deliver the desired messages and do not veer off-script.

Pharmaceutical companies likewise require their detailers to deploy sales aids reviewed, approved, and

supplied by the company and forbid them to use, in industry parlance, homemade breadi.e.,

promotional materials not approved by the companys marketing and compliance departments. Sales

representatives adherence to their corporate training is typically included in their work agreements.

Departing from their companys approved messaging can, and does, lead to severe consequences

including termination of employment.

156. Besides carefully training their sales representatives, Defendants used surveys of

physiciansconducted by third-party research firmsto assess how well their core messages came

across to prescribers.

157. In addition to making sales calls, Defendants detailers also identified doctors to serve,

for payment, on Defendants speakers bureaus and to attend programs with speakers and meals paid

41
for by Defendants. Defendants almost always selected physicians who were product loyalists, as they

were sure to be asked whether they prescribe the drug themselves. Endo, for instance, sought to use

specialists in pain medicineincluding high prescribers of its drugsas local thought leaders to

market Opana ER to primary care doctors. Such invitations are lucrative to the physicians selected for

these bureaus; honorarium rates range from $800 to $2,000 per program, depending on the type of

event, speaker training is typically compensated at $500 per hour.

158. These speaker programs and associated speaker trainings serve three purposes: they

provide an incentive to doctors to prescribe, or increase their prescriptions of, a particular drug; a

forum in which to further market to the speaker him or herself; and an opportunity to market to the

speakers peers. Defendants grade their speakers and future opportunities are based on speaking

performance, post-program sales, and product usage. Defendants also track the prescribing of event

attendees, with Endo noting that physicians who came into our speaker programs wrote more

prescriptions for Opana ER after attending than before. It would make little sense for Defendants to

devote significant resources to programs that did not increase their sales.

159. Like the sales representatives who select them, speakers are expected to stay on

messageindeed, they agree in writing to follow the slide decks provided to them. Endos speaker

rules, for example, provide that all slides must be presented in their entirety and without alterations . .

. and in sequence. This is important because the FDA regards promotional talks as part of product

labeling, and requires their submission for review. Speakers thus give the appearance of providing

independent, unbiased presentations on opioids, when in fact they are presenting a script prepared by

Defendants marketing departments. Although these meal-based speaker events are more expensive to

host, and typically have lower attendance than CMEs, they are subject to less professional scrutiny and

thus afford Defendants greater freedom in the messages they present.

42
 160. Defendants devoted massive resources to these direct sales contacts with prescribers.

In 2014, Defendants collectively spent $168 million on detailing branded opioids to physicians

nationwide. This figure includes $108 million spent by Purdue, $34 million by Janssen, $13 million by

Cephalon, $10 million by Endo, and $2 million by Actavis. The total figure is more than double

Defendants collective spending on detailing in 2000. Detailers role in Defendants overall

promotional efforts was also carefully calibrated; Endo, for example, found that devoting 61% of its

marketing budget to sales representatives reflected an [a]ppropriate combination of personal . . . and

non-personal . . . selling initiatives.

161. Defendants have spent hundreds of millions of dollars promoting their opioids

through their respective sales forces because they understand that detailers sales pitches are effective.

Numerous studies indicate that marketing can and does impact doctors prescribing habits, 51 and face-

to-face detailing has the highest influence on intent to prescribe. Defendants could see this

phenomenon at work not only in the aggregate, as their sales climbed with their promotional spending,

but also at the level of individual prescribers whom they targeted for detailing, and who responded by

prescribing more of Defendants drugs.

3. Defendants Directed These Promotional Efforts Through Detailed Marketing

Plans.

162. Defendants guided their efforts to expand opioid prescribing through comprehensive

marketing and business plans for each drug. These documents, based on the companies extensive

51
See, e.g., Puneet Manchanda & Pradeep K. Chintagunta, Responsiveness of Physician Prescription Behavior to
Salesforce Effort: An Individual Level Analysis, 15 (2-3) Mktg. Letters 129 (2004) (detailing has a positive
impact on prescriptions written); Ian Larkin, Restrictions on Pharmaceutical Detailing Reduced Off-Label
Prescribing of Antidepressants and Antipsychotics in Children, 33(6) Health Affairs 1014 ( 2014) (finding
academic medical centers that restricted direct promotion by pharmaceutical sales representatives
resulted in a 34% decline in on-label use of promoted drugs); see also Art Van Zee, The Promotion and
Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99(2) Am J. Pub. Health 221 (2009)
(correlating an increase of OxyContin prescriptions from 670,000 annually in 1997 to 6.2 million in
2002 to a doubling of Purdues sales force and trebling of annual sales calls).

43
market research, laid out ambitious plans to bring in new prescribers and increase overall prescribing

of Defendants opioids.

a. Targeting categories of prescribers

163. Defendants targeted, by zip codes and other local boundaries, individual health care

providers for detailing. Defendants chose their targets based on the potential for persuading a provider

to prescribe, ease of in-person access, and the likelihood of higher numbers of prescriptions at higher

doses, with no correlation to demonstrated need or demand for opioid therapy, or to risk of abuse.

164. Collectively, Defendants marketing plans evince dual strategies, which often operated

parallel to one another. Defendants sales representatives continued to focus their detailing efforts on

pain specialists and anesthesiologists, the highest-volume prescribers of opioids and, as a group, more

educated than other practitioners about opioids risks and benefits. Seeking to develop market share

and expand sales, however, Defendants also targeted increasing numbers and types of prescribers for

marketing.

165. This expanded market of prescribers was, as a group, less informed about opioids and,

as market research concluded, more susceptible to Defendants marketing messages. These prescribers

included nurse practitioners and physician assistants who, a 2012 Endo business plan noted, were

share acquisition opportunities because they were 3x times more responsive than MDs to details

and wrote 96% of [their] prescriptions . . . without physician consult.

166. The expanded market also included internists and general practitioners who were low-

to mid-volume prescribers. Actavis, for example, rolled out a plan in 2008 to move beyond Kadian

loyalists to an expanded audience of low morphine writers.

b. Increasing direct to consumer marketing

167. Defendants knew that physicians were more likely to prescribe their branded

medications when patients asked for those medications. Endos research, for example, found that such

44
communications resulted in greater patient brand loyalty, with longer durations of Opana ER

therapy and fewer discontinuations. Defendants thus increasingly took their opioid sales campaigns

directly to consumers, including through patient-focused education and support materials. These

took the form of pamphlets, videos, or other publications that patients could view in their physicians

office, as well as employer and workers compensation plan initiatives to, as Endo put it, [d]rive

demand for access through the employer audience by highlighting cost of disease and productivity

loss.

168. Defendants also knew that one of the largest obstacles to patients starting and

remaining on their branded opioidsincluding by switching from a competitors drugwas out- of-

pocket cost. They recognized they could overcome this obstacle by providing patients financial

assistance with their insurance co-payments, and each of the Defendants did so through vouchers and

coupons distributed during detailing visits with prescribers. A 2008 Actavis business review, for

example, highlighted co-pay assistance, good for up to $600 per patient per year, as a way to drive

conversions to Kadian from competitor drugs like Avinza and MS Contin. In 2012, Janssen planned to

distribute 1.5 million savings cards worth $25 each.

c. Differentiating each brand

169. Purdues OxyContin was the clear market leader in prescription opioid therapy, with

30% of the market for analgesic drugs in 2012. However, by 2010, Defendants had begun facing

increasing pushback from the medical community and regulators based on the growing problems of

opioid addiction and abuse. Both market conditions prompted Defendants to pursue product

45
differentiation strategiesparticularly an emphasis on their products being less subject to diversion,

abuse, and addictionas a means of grabbing market share from Purdue and other competitors.

170. Endo, for example, tracked in detail prescriber switching from OxyContin to Opana

ER. Actavis and Janssen did the same for switches to Kadian and Nucynta ER, respectively. Pressure

to stand out among other drugs resulted in Defendants identifying marketing themes that thereafter

were reflected in Defendants deceptive and harmful messages to physicians and consumers. A 2008

Janssen plan emphasized value messaging in support of Nucynta ER, including claims of less dose

escalation, lower toxicity, fewer withdrawal symptoms, and less dependence, and a 2009 Opana ER

market research report focused on greater potency and lower abuse potential of Opana ER vis--vis

OxyContin.

d. Moving beyond office visits

171. Defendants sought to reach additional prescribers by expanding beyond traditional

sales calls and speaker events to new channels for their messages. For their sales forces, these included

marketing to prescribers through voice mail, postcards, and emailso- called e-detailing.

Defendants also created new platforms for their speakers by implementing peer to peer programs

such as teleconferences and webinars that were available to prescribers nationally. These programs

allowed Defendants to use this more seemingly credible vehicle to market to, among other hard-to-

reach audiences, prescribers at hospitals, academic centers, and other locations that limit or prohibit in-

person detailing. Employing these new approaches, each Defendant relied heavily on speakers to

promote its drugs.

4. Defendants Marketed Opioids in Shelby County Using the Same Strategies and
Messages They Employed Nationwide.

172. Defendants employed the same marketing plans and strategies and deployed the same

messages in Shelby County as they did nationwide.

46
 173. Across the pharmaceutical industry, core message development is funded and

overseen on a national basis by corporate headquarters. This comprehensive approach ensures that

Defendants messages are accurately and consistently delivered across marketing channelsincluding

detailing visits, speaker events, and advertisingand in each sales territory. Defendants consider this

high level of coordination and uniformity crucial to successfully marketing their drugs.

174. Defendants ensure marketing consistency nationwide through national and regional

sales representative training; national training of local medical liaisons, the company employees who

respond to physician inquiries; centralized speaker training; single sets of visual aids, speaker slide

decks, and sales training materials; and nationally coordinated advertising. Defendants sales

representatives and physician speakers were required to stick to prescribed talking points, sales

messages, and slide desks, and supervisors traveled with them periodically to check on both their

performance and compliance.

175. As they did nationwide, Defendants extensively tracked the prescribing behavior of

County-area health care providers and used that data to target their detailing and speaker- recruiting

efforts. Top prescribers were profiled at the city, region, zip code, and sometimes facility levels, with

information about their specialty, prescribing patterns (including product and dose), product loyalty

and refill history. Providers prescribing volume was ranked and sorted into deciles.

176. As described herein, misrepresentations and deceptions regarding the risks, benefits,

and superiority of opioid use to treat chronic pain were part and parcel of Defendants marketing

campaigns in Shelby County.

C. Defendants Used Unbranded Marketing to Evade Regulations and Consumer

Protection Laws.

177. In addition to their direct marketing efforts, Defendants used unbranded, third- party

marketing, which they deployed as part of their national marketing strategies for their branded drugs.

47
Each Defendant executed these strategies through a network of third-party KOLs and Front Groups,

with which it acted in concert by funding, assisting, encouraging, and directing their efforts. At the

same time, Defendants exercised substantial control over the content of the messages third parties

generated and disseminated, and distributed certain of those materials themselves. As with their other

marketing strategies, Defendants unbranded marketing created, and relied upon, an appearance of

independence and credibility that was undeserved but central to its effectiveness. Unlike their direct

promotional activities, Defendants unbranded marketing allowed them to evade the oversight of

federal regulators and gave them greater freedom to expand their deceptive messages.

1. Regulations Governing Branded Promotion Require that it Be Truthful, Balanced,

and Supported by Substantial Evidence.

178. Drug companies that make, market, and distribute opioids are subject to generally

applicable rules requiring truthful marketing of prescription drugs. A drug companys branded

marketing, which identifies and promotes a specific drug, must: (a) be consistent with its label and

supported by substantial scientific evidence; (b) not include false or misleading statements or material

omissions; and (c) fairly balance the drugs benefits and risks.52 The regulatory framework governing

the marketing of specific drugs reflects a public policy designed to ensure that drug companies, which

are best suited to understand the properties and effects of their drugs, are responsible for providing

prescribers with the information they need to accurately assess the risks and benefits of drugs for their

patients.

179. Further, the Federal Food, Drug, and Cosmetic Act (FDCA) prohibits the sale in

interstate commerce of drugs that are misbranded. A drug is misbranded if it lacks adequate

directions for use or if the label is false or misleading in any particular.53 Adequate directions for

52
21 U.S.C. 352(a); 21 C.F.R. 1.21(a), 202.1(e)(3), 202.1(e)(6).
53
21 U.S.C. 352.

48
use are directions under which the layman can use a drug safely and for the purposes for which it is

intended.54 Labeling includes more than the drugs physical label; it also includes all . . . other

written, printed, or graphic matter . . . accompanying the drug, including promotional material. 55

The term accompanying is interpreted broadly to include promotional materialsposters, websites,

brochures, books, and the likedisseminated by or on behalf of the manufacturer of the drug. 56

Thus, Defendants promotional materials are part of their drugs labels and are required to be accurate,

balanced, and not misleading.

180. Labeling is misleading if it is not based on substantial evidence, if it materially

misrepresents the benefits of the drug, or if it omits material information about or minimizes the

frequency or severity of a products risks. The most serious risks set forth in a products labeling are

generally material to any presentation of efficacy. The FDA notes that [b]ecause people expect to

see risk information, there is no reason for them to imagine that the product has important risks that

have been omitted . . . especially if some risks are included.57 Promotion that fails to present the most

important risks of the drug as prominently as its benefits lacks fair balance and is therefore deceptive.

181. It is also illegal for drug companies to distribute materials that exclude contrary

evidence or information about the drugs safety or efficacy or present conclusions that clearly cannot

be supported by the results of the study. 58 Further, drug companies must not make comparisons

between their drugs and other drugs that represent or suggest that a drug is safer or more effective

54
21 C.F.R. 201.5.
55
21 U.S.C. 321(m).
56
See id.
57
FDA, Draft Guidance for Industry, Presenting Risk Information in Prescription Drug and Medical Device
Promotion, May 2009, at 14.
58
21 C.F.R. 99.101(a)(4).

49
than another drug in some particular when it has not been demonstrated to be safer or more effective

in such particular by substantial evidence or substantial clinical experience.59

182. While the FDA must approve a drugs label, it is the drug companys responsibility to

ensure that the material in its label is accurate and complete and is updated to reflect any new

information.60 Promotional materials also must be submitted to the FDA when they are first used or

disseminated. The FDA does not have to approve these materials in advance; if, upon review, the

FDA determines that materials marketing a drug are misleading, it can issue an untitled letter or

warning letter. The FDA uses untitled letters for violations such as overstating the effectiveness of the

drug or making claims without context or balanced information. Warning letters address promotions

involving safety or health risks and indicate the FDA may take further enforcement action.

2. Defendants Deployed Front Groups and Doctors to Disseminate Unbranded

Information on Their Behalf.

183. Drug companies market both directly and indirectly, using third party validators (such

as scientists, physicians, patient or professional organizations) that appear to be independent and

therefore more credible. The FDA has made clear that its promotional requirements apply to both

forms of marketing:

FDAs regulation of prescription drug product promotion extends both to promotional

activities that are carried out by the firm itself, and to promotion conducted on the
firms behalf.

....

Therefore, a firm is responsible for the content generated by its employees or any
agents acting on behalf of the firm who promote the firms product. For example, if an

59
21 C.F.R. 202.1(e)(6)(ii).
60
See 21 C.F.R. 201.56 (providing general requirements for prescription drug labeling); see also Wyeth
v. Levine, 555 U.S. 555 (2009) (holding that a drug company bears responsibility for the content of its
drug labels at all times); 21 C.F.R. 314.70(c)(6) (iii)(A-C) (allowing manufacturers to make changes
that strengthen . . . a warning, precaution, or adverse reaction or strengthen a statement about drug
abuse, dependence, psychological effect, or overdosage).

50
 employee or agent of a firm, such as a medical science liaison or paid speaker (e.g., a
key opinion leader) acting on the firms behalf, comments on a third- party site about
the firms product, the firm is responsible for the content its employee or agent
provides. A firm is also responsible for the content on a bloggers site if the blogger is
acting on behalf of the firm.61

184. In addition to being carried out directly or through third parties, drug companies

promotional activity can be branded or unbranded; unbranded marketing refers not to a specific drug,

but more generally to a disease state or treatment. By using unbranded communications, drug

companies can sidestep the extensive regulatory framework governing branded communications.

185. Defendants disseminated many of their false, misleading, imbalanced, and unsupported

statements indirectly, through KOLs and Front Groups, and in unbranded marketing materials. These

KOLs and Front Groups were important elements of Defendants marketing plans, which specifically

contemplated their use, because they seemed independent and therefore outside FDA oversight.

Through unbranded materials, Defendants, with their own knowledge of the risks, benefits and

advantages of opioids, presented information and instructions concerning opioids generally that were

contrary to, or at best, inconsistent with information and instructions listed on Defendants branded

marketing materials and drug labels. Defendants did so knowing that unbranded materials typically are

not submitted to or reviewed by the FDA.

186. Even where such unbranded messages were channeled through third-party vehicles,

Defendants adopted these messages as their own when they cited to, edited, approved, and distributed

such materials knowing they were false, misleading, unsubstantiated, unbalanced, and incomplete.

Unbranded brochures and other materials that are disseminated by or on behalf of [the]

manufacturer constitute drug labeling that may not be false or misleading in any particular. See 21.

61
FDA, Draft Guidance for Industry on Fulfilling Regulatory Requirements for Postmarketing Submissions of
Interactive Promotional Media for Prescription Human and Animal Drugs and Biologics, January 2014, at 1, 4,
http://www.fda.gov/downloads/drugs/guidancecomplianceregulatoryinformation/guidances/ucm38
1352.pdf (accessed May 30, 2017).

51
C.F.R. 202.1(e)(7)(l)(2).62 Defendants sales representatives distributed third-party marketing material

that was deceptive to Defendants target audiences. Defendants are responsible for these materials.

187. Moreover, Defendants took an active role in guiding, reviewing, and approving many

of the misleading statements issued by these third parties, ensuring that Defendants were consistently

aware of their content. By funding, directing, editing, and distributing these materials, Defendants

exercised control over their deceptive messages and acted in concert 63 with these third parties to

fraudulently promote the use of opioids for the treatment of chronic pain.

188. For example, drug companies have been admonished for making functional claims in

FDA-reviewed branded materials if there is no evidence for such claims. Thus, drug companies were

put on notice that the FDA would not allow such claims in branded materials. Defendants instead

created and disseminated these same unsupported claimsthat opioids allow patients to sleep, return

to work, or walk more easilythrough unbranded marketing materials.

189. The third-party publications Defendants assisted in creating and distributing did not

include the warnings and instructions mandated by their FDA-required drug labels and consistent with

the risks and benefits known to Defendants. For example, these publications either did not disclose

the risks of addiction, abuse, misuse, and overdose, or affirmatively denied that patients faced a serious

risk of addiction.

62
This regulation provides: Brochures, booklets, mailing pieces, detailing pieces, file cards, bulletins,
calendars, price lists, catalogs, house organs, letters, motion picture films, film strips, lantern slides,
sound recordings, exhibits, literature, and reprints and similar pieces of printed, audio, or visual matter
descriptive of a drug and the references published . . . containing drug information supplied by the
manufacturer, packer, or distributor of the drug and which are disseminated by or on behalf of its
manufacturer, packer, or distributor are hereby determined to be labeling, as defined in section 201(m)
of the act. As labeling, such third party-created content distributed by a drug company may not be
misleading and must meet the accuracy, substantiation, and fair balance requirements in the FDCA.
63
As used in this Complaint, the allegation that Defendants acted in concert with third parties is
intended to mean both that they conspired with these third parties to achieve some end and that they
aided and abetted these third parties in the commission of acts necessary to achieve it.

52
 190. By acting through third parties, Defendants were able to both avoid FDA scrutiny and

give the false appearance that the messages reflected the views of independent third parties. Later,

Defendants would cite to these sources as independent corroboration of their own statements. As

one physician adviser to Defendants noted, third-party documents not only had greater credibility, but

broader distribution as doctors did not push back at having materials from, for example, the non-

profit American Pain Foundation (APF) on display in their offices, as they might with first party,

drug company pieces. Nevertheless, the independence of these materials was a ruseDefendants were

in close contact with these third parties, paid for and were aware of the misleading information they

were disseminating about the use of opioids to treat chronic pain, and regularly helped them to tailor

and distribute their misleading, pro-opioid messaging.

191. As part of a strategic marketing scheme, Defendants spread and validated their

deceptive messages through the following vehicles: (a) KOLs, who could be counted upon to write

favorable journal articles and deliver supportive CMEs; (b) a body of biased and unsupported scientific

literature; (c) treatment guidelines; (d) CMEs; (e) unbranded patient education materials; and (f) Front

Group patient-advocacy and professional organizations, which exercised their influence both directly

and through Defendant-controlled KOLs who served in leadership roles in those organizations.

a. Defendants Use of KOLs

192. Defendants cultivated a small circle of doctors who, upon information and belief, were

selected and sponsored by Defendants solely because they favored the aggressive treatment of chronic

pain with opioids. Defendants support helped these doctors become respected industry experts. In

return, these doctors repaid Defendants by touting the benefits of opioids to treat chronic pain.

53
 193. Pro-opioid doctors have been at the hub of Defendants promotional efforts,

presenting the appearance of unbiased and reliable medical research supporting the broad use of

opioid therapy for chronic pain. KOLs have written, consulted on, edited, and lent their names to

books and articles, and given speeches and CMEs supportive of chronic opioid therapy. They have

served on committees that developed treatment guidelines that strongly encourage the use of opioids

to treat chronic pain (even while acknowledging the lack of evidence in support of that position) and

on the boards of pro-opioid advocacy groups and professional societies that develop, select, and

present CMEs. Defendants were able to exert control of each of these modalities through their KOLs.

194. In return, the KOLs association with Defendants provided not only money, but

prestige, recognition, research funding, and avenues to publish. This positioned them to exert even

more influence in the medical community.

195. Although some KOLs initially may have advocated for more permissive opioid

prescribing with honest intentions, Defendants cultivated and promoted only those KOLs who could

be relied on to help broaden the chronic opioid therapy market. Defendants selected, funded, and

elevated those doctors whose public positions were unequivocal and supportive of using opioids to

treat chronic pain.64 These doctors professional reputations were then dependent on continuing to

promote a pro-opioid message, even in activities that were not directly funded by the drug companies.

196. Defendants cited and promoted favorable studies or articles by these KOLs. By

contrast, Defendants did not support, acknowledge, or disseminate the publications of doctors critical

of the use of chronic opioid therapy. Indeed, one prominent KOL sponsored by Defendants, Russell

64
Opioid-makers were not the first to mask their deceptive marketing efforts in purported science.
The tobacco industry also used KOLs in its effort to persuade the public and regulators that tobacco
was not addictive or dangerous. For example, the tobacco companies funded a research program at
Harvard and chose as its chief researcher a doctor who had expressed views in line with industrys
views. He was dropped when he criticized low-tar cigarettes as potentially more dangerous, and later
described himself as a pawn in the industrys campaign.

54
Portenoy, stated that he was told by a drug company that research critical of opioids (and the doctors

who published that research) would never obtain funding. Some KOLs have even gone on to become

direct employees and executives of Defendants, like Dr. David Haddox, Purdues Vice President of

Risk Management, or Dr. Bradley Galer, Endos former Chief Medical Officer.

197. Defendants provided substantial opportunities for KOLs to participate in research

studies on topics Defendants suggested or chose, with the predictable effect of ensuring that many

favorable studies appeared in the academic literature. As described by Dr. Portenoy, drug companies

would approach him with a study that was well underway and ask if he would serve as the studys

author. Dr. Portenoy regularly agreed.

198. Defendants also paid KOLs to serve as consultants or on their advisory boards and

give talks or present CMEs, typically over meals or at conferences. Since 2000, Cephalon, for instance,

has paid doctors more than $4.5 million for programs relating to its opioids.

199. These KOLs were carefully vetted to ensure that they were likely to remain on-message

and supportive of a pharmaceutical industry agenda. One measure was a doctors prior work for

trusted Front Groups.

200. Defendants kept close tabs on the content of the misleading materials published by

these KOLs. In many instances, they also scripted what these KOLs saidas they did with all their

recruited speakers. The KOLs knew, or deliberately ignored, the misleading way in which they

portrayed the use of opioids to treat chronic pain to patients and prescribers, but they continued to

publish those misstatements to benefit themselves and Defendants, all the while causing harm to

County prescribers and patients.

i. Defendant Russell Portenoy

201. Defendant Dr. Russell Portenoy, former Chairman of the Department of Pain

Medicine and Palliative Care at Beth Israel Medical Center in New York, is one example of a KOL

55
whom Defendants identified and promoted to further their marketing campaign. Dr. Portenoy

received research support, consulting fees, and honoraria from Cephalon, Endo, Janssen, and Purdue

(among others), and was a paid consultant to Cephalon and Purdue.

202. Defendant Dr. Portenoy was instrumental in opening the door for the regular use of

opioids to treat chronic pain. He served on the American Pain Society (APS) / American Academy

of Pain Medicine (AAPM) Guidelines Committees, which endorsed the use of opioids to treat

chronic pain, first in 1997 and again in 2009. He was also a member of the board of APF, an advocacy

organization almost entirely funded by Defendants.

203. Defendant Dr. Portenoy also made frequent media appearances promoting opioids and

spreading misrepresentations. He appeared on Good Morning America in 2010 to discuss the use of

opioids long-term to treat chronic pain. On this widely watched program, broadcast in Shelby County

and across the country, Dr. Portenoy claimed: Addiction, when treating pain, is distinctly uncommon.

If a person does not have a history, a personal history, of substance abuse, and does not have a history

in the family of substance abuse, and does not have a very major psychiatric disorder, most doctors

can feel very assured that that person is not going to become addicted.65

204. Defendant Dr. Portenoy has recently admitted that he gave innumerable lectures in

the late 1980s and 90s about addiction that werent true. These lectures falsely claimed that fewer

than 1% of patients would become addicted to opioids. According to Dr. Portenoy, because the

primary goal was to destigmatize opioids, he and other doctors promoting them overstated their

benefits and glossed over their risks. Dr. Portenoy also conceded that [d]ata about the effectiveness

65
Good Morning America television broadcast, ABC News (Aug. 30, 2010).

56
of opioids does not exist. 66 Portenoy candidly stated: Did I teach about pain management,

specifically about opioid therapy, in a way that reflects misinformation? Well, . . . I guess I did.67

ii. Defendant Lynn Webster

205. Another KOL, Defendant Dr. Lynn Webster, was the co-founder and Chief Medical

Director of Lifetree Clinical Research, an otherwise unknown pain clinic in Salt Lake City, Utah. Dr.

Webster was President in 2013 and is a current board member of AAPM, a front group that ardently

supports chronic opioid therapy. 68 He is a Senior Editor of Pain Medicine, the same journal that

published Endo special advertising supplements touting Opana ER. Dr. Webster was the author of

numerous CMEs sponsored by Cephalon, Endo, and Purdue. At the same time, Dr. Webster was

receiving significant funding from Defendants (including nearly $2 million from Cephalon).

206. Dr. Webster had been under investigation for overprescribing by the DEA, which

raided his clinic in 2010. More than 20 of Dr. Websters former patients at the Lifetree Clinic have died

of opioid overdoses. Ironically, Dr. Webster created and promoted the Opioid Risk Tool, a five

question, one-minute screening tool relying on patient self-reports that purportedly allows doctors to

manage the risk that their patients will become addicted to or abuse opioids. The claimed ability to pre-

sort patients likely to become addicted is an important tool in giving doctors confidence to prescribe

opioids long-term, and for this reason, references to screening appear in various industry-supported

guidelines. Versions of Dr. Websters Opioid Risk Tool appear on, or are linked to, websites run by

Endo, Janssen, and Purdue. In 2011, Dr. Webster presented, via webinar, a program sponsored by

Purdue titled, Managing Patients Opioid Use: Balancing the Need and the Risk. Dr. Webster recommended

66
Thomas Catan & Evan Perez, A Pain-Drug Champion Has Second Thoughts, Wall St. J., Dec. 17, 2012.
67
Id.
68
Journal supplements are paid for by drug manufacturers and, although they may be designed to
blend into the rest of the journal, are not peer-reviewed and constitute drug company advertising.

57
use of risk screening tools, urine testing, and patient agreements to prevent overuse of prescriptions

and overdose deaths. This webinar was available to and was intended to reach County doctors.

207. Dr. Webster also was a leading proponent of the concept of pseudoaddiction, the

notion that addictive behaviors should be seen not as warnings, but as indications of undertreated pain.

In Dr. Websters description, the only way to differentiate the two was to increase a patients dose of

opioids. As he and his co-author wrote in a book entitled Avoiding Opioid Abuse While Managing Pain

(2007), when faced with signs of aberrant behavior, increasing the dose in most cases . . . should be

the clinicians first response. Endo distributed this book to doctors. Years later, Dr. Webster reversed

himself, acknowledging that [pseudoaddiction] obviously became too much of an excuse to give

patients more medication.69

b. Research That Lacked Supporting Evidence

208. Rather than find a way to actually test the safety and efficacy of opioids for long- term

use, Defendants led people to believe that they already had. Defendants created a body of false,

misleading, and unsupported medical and popular literature about opioids that (a) understated the risks

and overstated the benefits of long-term use; (b) appeared to be the result of independent, objective

research; and (c) was thus more likely to shape the perceptions of prescribers, patients and payors. This

literature was, in fact, marketing material focused on persuading doctors and consumers that the

benefits of long-term opioid use outweighed the risks.

209. To accomplish this, Defendantssometimes through third-party consultants and/or

advocacy organizationscommissioned, edited, and arranged for the placement of favorable articles in

academic journals. Defendants internal documents reveal plans to submit research papers and

69
John Fauber & Ellen Gabler, Networking Fuels Painkiller Boom, Milwaukee Wisc. J. Sentinel (Feb.
19, 2012).

58
studies to long lists of journals, including back-up options and last resort, fast-track application

journals, that they could use if the pending paper was rejected everywhere else.

210. Defendants coordinated the timing and publication of manuscripts, abstracts,

posters/oral presentations, and educational materials in peer-reviewed journals and other publications

to support the launch and sales of their drugs. The plans for these materials did not originate in the

departments within the Defendant organizations that were responsible for research, development or

any other area that would have specialized knowledge about the drugs and their effects on patients, but

in Defendants marketing departments and with Defendants marketing and public relations

consultants. Defendants often relied on data on file or presented posters, neither of which are

subject to peer review. They also published their articles not through a competitive process, but in paid

journal supplements, which allowed Defendants to publish, in nationally circulated journals, studies

supportive of their drugs.

211. Defendants also made sure that favorable articles were disseminated and cited widely in

the medical literature, even where references distorted the significance or meaning of the underlying

study. Most notably, Purdue promoted a 1980 reference in the well-respected New England Journal of

Medicine: J. Porter & H. Jick, Addiction Rare in Patients Treated with Narcotics, 302(2) New Eng. J. Med. 123

(1980) (Porter-Jick Letter). It is cited 856 times in Google Scholar, and 86 times since 2010. It also

appears as a reference in two CME programs in 2012 sponsored by Purdue and Endo.70 Defendants

and those acting on their behalf fail to reveal that this article is actually a letter-to-the-editor, not a

peer-reviewed study (or any kind of study at all). The Porter-Jick Letter, reproduced in full below,

describes a review of the charts of hospitalized patients who had received opioids. (Because it was a

70
AAPM, Safe Opioid Prescribing Course, February 25-26, 2012, sponsored by Purdue and Endo;
Chronic Pain Management and Opioid Use, October 11, 2012, sponsored by Purdue. Each CME is
available for online credit, including to prescribers in Shelby County.

59
1980 study, standards of care almost certainly would have limited opioids to acute or end-of-life

situations, not chronic pain.)

212. The Porter-Jick Letter notes that, when these patients records were reviewed, it found

almost no references to signs of addiction, though there is no indication that caregivers were instructed

to assess or document signs of addiction. None of these serious limitations is disclosed when

Defendants, or those acting on their behalf, cite the Porter-Jick Letter, typically as the sole scientific

support for the proposition that opioids are rarely addictive, even when taken long-term. In fact, Dr.

Jick later complained that his letter had been distorted and misused.

213. Defendants worked not only to create or elevate favorable studies in the literature, but

to discredit or bury negative information. Defendants studies and articles often targeted articles that

contradicted Defendants claims or raised concerns about chronic opioid therapy. In order to do so,

Defendantsoften with the help of third-party consultantstargeted a broad range of media to get

their message out, including negative review articles, letters to the editor, commentaries, case-study

reports, and newsletters.

60
 214. Defendants strategiesfirst, to plant and promote supportive literature and then, to

cite the pro-opioid evidence in their promotional materials, while failing to disclose evidence that

contradicts those claimsare in dereliction of their legal obligations. The strategies were intended to,

and did, knowingly and intentionally distort the truth regarding the risks, benefits and superiority of

opioids for chronic pain relief resulting in distorted prescribing patterns.

c. Treatment Guidelines

215. Treatment guidelines have been particularly important in securing acceptance for

chronic opioid therapy. They are relied upon by doctors, especially the general practitioners and family

doctors targeted by Defendants, who are otherwise not experts, nor trained, in the treatment of

chronic pain. Treatment guidelines not only directly inform doctors prescribing practices, but are cited

throughout the scientific literature and referenced by third-party payors in determining whether they

should cover treatments for specific indications. Furthermore, Endos internal documents indicate that

pharmaceutical sales representatives employed by Endo, Actavis, and Purdue discussed treatment

guidelines with doctors during individual sales visits.

i. FSMB

216. The Federation of State Medical Boards (FSMB) is a trade organization representing

the various state medical boards in the United States. The state boards that comprise the FSMB

membership have the power to license doctors, investigate complaints, and discipline physicians. The

FSMB finances opioid- and pain-specific programs through grants from Defendants.

217. In 1998, the FSMB developed Model Guidelines for the Use of Controlled Substances for the

Treatment of Pain (FSMB Guidelines), which FSMB admitted was produced in collaboration with

pharmaceutical companies.71 The FSMB Guidelines taught not that opioids could be appropriate in

limited cases or after other treatments had failed, but that opioids were essential for treatment of

61
chronic pain, including as a first prescription option. The FSMB Guidelines failed to mention risks

relating to respiratory depression and overdose, and they discussed addiction only in the sense that

inadequate understandings of addiction can lead to inadequate pain control.

218. A 2004 iteration of the FSMB Guidelines and the 2007 book adapted from the 2004

guidelines, Responsible Opioid Prescribing, also make these same claims. These guidelines were posted

online and were available to and intended to reach County physicians.

219. The publication of Responsible Opioid Prescribing was backed largely by drug

manufacturers, including Cephalon, Endo, and Purdue. The FSMB financed the distribution of

Responsible Opioid Prescribing by its member boards by contracting with drug companies, including Endo

and Cephalon, for bulk sales and distribution to sales representatives (for distribution to prescribing

doctors).

220. In all, 163,131 copies of Responsible Opioid Prescribing were distributed to state medical

boards (and through the boards, to practicing doctors), and the FSMB benefitted by earning

approximately $250,000 in revenue and commissions from their sale. The FSMB website describes the

book as the leading continuing medication education (CME) activity for prescribers of opioid

medications.

221. Drug companies relied on FSMB guidelines to convey the message that under-

treatment of pain would result in official discipline, but no discipline would result if opioids were

prescribed as part of an ongoing patient relationship and prescription decisions were documented.

FSMB turned doctors fear of discipline on its headdoctors, who used to believe that they would be

disciplined if their patients became addicted to opioids, were taught that they would be punished

instead if they failed to prescribe opioids to their patients with pain.

222. FSMB, more recently, has moderated its stance. Although the 2012 revision of

Responsible Opioid Prescribing continued to teach that pseudoaddiction is real and that opioid addiction

62
risk can be managed through risk screening, it no longer recommended chronic opioid therapy as a

first choice after the failure of over-the-counter medication and has heightened its addiction and risk

warnings.

ii. AAPM/APS Guidelines

223. AAPM and the APS are professional medical societies, each of which received

substantial funding from Defendants from 2009 to 2013 (with AAPM receiving over $2 million).

224. They issued a consensus statement in 1997, The Use of Opioids for the Treatment of Chronic

Pain, which endorsed opioids to treat chronic pain and claimed that the risk that patients would

become addicted to opioids was low.72 The co-author of the statement, Dr. Haddox, was, at the time, a

paid speaker for Purdue. Dr. Portenoy was the sole consultant. The consensus statement, which also

formed the foundation of the FSMB Guidelines, remained on AAPMs website until 2011. The

statement was taken down from AAPMs website only after a doctor complained, though it lingers on

the internet elsewhere.73

225. AAPM and APS issued their own guidelines in 2009 (AAPM/APS Guidelines) and

continued to recommend the use of opioids to treat chronic pain.74 Fourteen of the 21 panel members

who drafted the AAPM/APS Guidelines, including KOLs Dr. Portenoy and Dr. Perry Fine of the

University of Utah, received support from Janssen, Cephalon, Endo, and Purdue.

226. The 2009 Guidelines promote opioids as safe and effective for treating chronic pain,

despite acknowledging limited evidence, and conclude that the risk of addiction is manageable for

72
Consensus statement, The Use of Opioids for the Treatment of Chronic Pain, APS & AAPM (1997),
available at http://opi.areastematicas.com/generalidades/OPIOIDES.DOLORCRONICO.pdf
(accessed May 30, 2017).
73
Id.
74
Roger Chou et al., Clinical Guidelines for the Use of Chronic Opioid Therapy in Chronic Noncancer Pain ,
10(2) The Journal of Pain: Official Journal of the American Pain Society 113-130 (2009)

63
patients regardless of past abuse histories. One panel member, Dr. Joel Saper, Clinical Professor of

Neurology at Michigan State University and founder of the Michigan Headache & Neurological

Institute, resigned from the panel because of his concerns that the 2009 Guidelines were influenced by

contributions that drug companies, including Defendants, made to the sponsoring organizations and

committee members. These AAPM/APS Guidelines have been a particularly effective channel of

deception and have influenced not only treating physicians, but also the body of scientific evidence on

opioids; the Guidelines have been cited 732 times in academic literature, were disseminated in Shelby

County during the relevant time period, are still available online, and were reprinted in the Journal of

Pain.

227. Defendants widely referenced and promoted the 2009 Guidelines without disclosing

the acknowledged lack of evidence to support them.

iii. American Geriatrics Society

228. The American Geriatrics Society (AGS), a nonprofit organization serving health care

professionals who work with the elderly, disseminated guidelines regarding the use of opioids for

chronic pain in 2002 (The Management of Persistent Pain in Older Persons, hereinafter 2002 AGS

Guidelines) and 2009 (Pharmacological Management of Persistent Pain in Older Persons, hereinafter 2009

AGS Guidelines). The 2009 AGS Guidelines included the following recommendations: All patients

with moderate to severe pain . . . should be considered for opioid therapy (low quality of evidence,

strong recommendation), and the risks [of addiction] are exceedingly low in older patients with no

current or past history of substance abuse.75 These recommendations, which continue to appear on

AGSs website, are not supported by any study or other reliable scientific evidence. Nevertheless, they

have been cited 278 times in Google Scholar since their 2009 publication.

75
Pharmacological Management of Persistent Pain in Older Persons, 57 J. Am. Geriatrics Socy 1331,
1339, 1342 (2009), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1526-
4637.2009.00699.x/full (accessed May 30, 2017).

64
 229. AGS contracted with Defendants Endo, Purdue, and Janssen to disseminate the 2009

Guidelines, and to sponsor CMEs based on them. These Defendants were aware of the content of the

2009 Guidelines when they agreed to provide funding for these projects. The 2009 Guidelines were

first published online on July 2, 2009. AGS submitted grant requests to Defendants including Endo

and Purdue beginning July 15, 2009. Internal AGS discussions in August 2009 reveal that it did not

want to receive up-front funding from drug companies, which would suggest drug company influence,

but would instead accept commercial support to disseminate the publication. However, by drafting the

guidelines knowing that pharmaceutical company funding would be needed, and allowing these

companies to determine whether to provide support only after they had approved the message, AGS

ceded significant control to these companies. Endo, Janssen, and Purdue all agreed to provide support

to distribute the guidelines.

230. According to one news report, AGS has received $344,000 in funding from opioid

makers since 2009. 76 Five of 10 of the experts on the guidelines panel disclosed financial ties to

Defendants, including serving as paid speakers and consultants, presenting CMEs sponsored by

Defendants, receiving grants from Defendants, and investing in Defendants stock. The Institute of

Medicine recommends that, to ensure an unbiased result, fewer than 50% of the members of a

guidelines committee should have financial relationships with drug companies.

iv. Guidelines That Did Not Receive Defendants Support

231. The extent of Defendants influence on treatment guidelines is demonstrated by the

fact that independent guidelinesthe authors of which did not accept drug company funding

reached very different conclusions. The 2012 Guidelines for Responsible Opioid Prescribing in Chronic Non-

Cancer Pain, issued by the American Society of Interventional Pain Physicians (ASIPP), warned that

76
John Fauber & Ellen Gabler, Narcotic Painkiller Use Booming Among Elderly, Milwaukee J. Sentinel,
May 30, 2012.

65
[t]he recent revelation that the pharmaceutical industry was involved in the development of opioid

guidelines as well as the bias observed in the development of many of these guidelines illustrate that

the model guidelines are not a model for curtailing controlled substance abuse and may, in fact, be

facilitating it. ASIPPs Guidelines further advise that therapeutic opioid use, specifically in high

doses over long periods of time in chronic non-cancer pain starting with acute pain, not only lacks

scientific evidence, but is in fact associated with serious health risks including multiple fatalities, and is

based on emotional and political propaganda under the guise of improving the treatment of chronic

pain. ASIPP recommends long-acting opioids in high doses only in specific circumstances with

severe intractable pain and only when coupled with continuous adherence monitoring, in well-

selected populations, in conjunction with or after failure of other modalities of treatments with

improvement in physical and functional status and minimal adverse effects.77

232. Similarly, the 2011 Guidelines for the Chronic Use of Opioids, issued by the American

College of Occupational and Environmental Medicine, recommend against the routine use of opioids

in the management of patients with chronic pain, finding at least moderate evidence that harms and

costs exceed benefits based on limited evidence, while conceding there may be patients for whom

opioid therapy is appropriate.78

233. The Clinical Guidelines on Management of Opioid Therapy for Chronic Pain, issued by the U.S.

Department of Veterans Affairs (VA) and Department of Defense (DOD) in 2010, notes that

their review:

77
Laxmaiah Manchikanti, et al., American Society of Interventional Pain Physicians (ASIPP) Guidelines
for Responsible Opioid Prescribing in Chronic Non-Cancer Pain: Part 1, Evidence Assessment, 15 Pain Physician
(Special Issue) S1-S66; Part 2 Guidance, 15 Pain Physician (Special Issue) S67-S116 (2012).
78
American College of Occupational and Environmental Medicines Guidelines for the Chronic Use of Opioids,
(2011), available at: https://www.nhms.org/sites/default/files/Pdfs/ACOEM%202011-
Chronic%20Pain%20Opioid%20.pdf (accessed May 30, 2017).

66
 revealed the lack of solid evidence based research on the efficacy of long-term opioid
therapy. Almost all of the randomized trials of opioids for chronic non-cancer pain
were short-term efficacy studies. Critical research gaps . . . include: lack of effectiveness
studies on long-term benefits and harms of opioids . . .; insufficient evidence to draw
strong conclusions about optimal approaches to risk stratification . . .; lack of evidence
on the utility of informed consent and opioid management plans . . .; and treatment of
patients with chronic non-cancer pain at higher risk for drug abuse or misuse.79

d. Continuing Medical Education

234. CMEs are ongoing professional education programs provided to doctors. Doctors are

required to attend a certain number and, often, type of CME programs each year as a condition of

their licensure. These programs are delivered in person, often in connection with professional

organizations conferences, online, or through written publications. Doctors rely on CMEs not only to

satisfy licensing requirements, but to get information on new developments in medicine or to deepen

their knowledge in specific areas of practice. Because CMEs are typically delivered by KOLs who are

highly respected in their fields, and are thought to reflect these physicians medical expertise, they can

be especially influential with doctors.

235. The countless doctors and other health care professionals who participate in accredited

CMEs constitute an enormously important audience for opioid reeducation. As one target, Defendants

aimed to reach general practitioners, whose broad area of focus and lack of specialized training in pain

management made them particularly dependent upon CMEs and, as a result, especially susceptible to

Defendants deceptions.

236. In all, Defendants sponsored CMEs that were delivered thousands of times, promoting

chronic opioid therapy and supporting and disseminating the deceptive and biased messages described

in this Complaint. These CMEs, while often generically titled to relate to the treatment of chronic pain,

79
Management of Opioid Therapy for Chronic Pain Working Group, VA/DoD Clinical Practice
Guideline for Management of Opioid Therapy for Chronic Pain (May 2010), available at
http://www.healthquality.va.gov/guidelines/Pain/cot/COT_312_Full-er.pdf (accessed May 30, 2017).

67
focused on opioids to the exclusion of alternative treatments, inflated the benefits of opioids, and

frequently omitted or downplayed their risks and adverse effects.

237. The American Medical Association (AMA) has recognized that support from drug

companies with a financial interest in the content being promoted creates conditions in which

external interests could influence the availability and/or content of the programs and urges that

[w]hen possible, CME[s] should be provided without such support or the participation of individuals

who have financial interests in the educational subject matter.80

238. Dozens of CMEs that were available to and attended or reviewed by County doctors

during the relevant time period did not live up to the AMAs standards.

239. The influence of Defendants funding on the content of these CMEs is clear. One

study by a Georgetown University Medical Center professor compared the messages retained by

medical students who reviewed an industry-funded CME article on opioids versus another group who

reviewed a non-industry-funded CME article. The industry-funded CME did not mention opioid-

related death once; the non-industry-funded CME mentioned opioid-related death 26 times. Students

who read the industry-funded article more frequently noted the impression that opioids were

underused in treating chronic pain. The take-aways of those reading the non- industry-funded CME

mentioned the risks of death and addiction much more frequently than the other group. Neither group

could accurately identify whether the article they read was industry-funded, making clear the difficulty

health care providers have in screening and accounting for source bias.81

80
Opinion 9.0115, Financial Relationships with Industry in CME, Am. Med. Assn (Nov. 2011), available at
http://eo2.commpartners.com/users/ama/downloads/120328_Opinion_E-9_0115.pdf (accessed
May 30, 2017).
81
Adriane Fugh-Berman, Marketing Messages in Industry-Funded CME, PharmedOut (June 25, 2010),
available at pharmedout.galacticrealms.com/Fugh-BermanPrescriptionforConflict6-25-10.pdf.

68
 240. By sponsoring CME programs presented by Front Groups like APF, AAPM, and

others, Defendants could expect messages to be favorable to them, as these organizations were

otherwise dependent on Defendants for other projects. The sponsoring organizations honored this

principle by hiring pro-opioid KOLs to give talks that supported chronic opioid therapy. Defendant-

driven content in these CMEs had a direct and immediate effect on prescribers views on opioids.

Producers of CMEs and Defendants measured the effects of CMEs on prescribers views on opioids

and their absorption of specific messages, confirming the strategic marketing purpose in supporting

them.

e. Unbranded Patient Education

241. Pharmaceutical industry marketing experts see patient-focused advertising, including

direct-to-consumer marketing, as particularly valuable in increas[ing] market share . . . by bringing

awareness to a particular disease that the drug treats.82 Evidence also demonstrates that physicians are

willing to acquiesce to patient demands for a particular drug even for opioids and for conditions for

which they are not generally recommended. 83 An Actavis marketing plan, for example, noted that

[d]irect-to-consumer marketing affects prescribing decisions. Recognizing this fact, Defendants put

their relationships with Front Groups to work to engage in largely unbranded patient education about

opioid treatment for chronic pain.

242. The drug companies expect that they will recoup their investment in direct-to-

consumer advertisements by capturing at least some of any additional prescriptions that result from

82
Kanika Johar, An Insiders Perspective: Defense of the Pharmaceutical Industrys Marketing Practices, 76 Albany
L. Rev. 299, 308 (2013).
83
Prescribers often accede to patient requests. According to one study, nearly 20% of sciatica patients
requesting oxycodone would receive a prescription for it, compared with 1% making no request. More
than half of patients requesting a strong opioid received one. J.B. McKinlay et al., Effects of Patient
Medication Requests on Physician Prescribing Behavior, 52(2) Med. Care 294 (2014).

69
patients asking their doctor about drugs that can treat their pain. Doctors also may review direct-to-

consumer materials sales representatives give them to distribute to patients.

f. Defendants Use of Front Groups

243. As noted above, Defendants Cephalon, Endo, Janssen, and Purdue entered into

arrangements with numerous organizations to promote opioids. These organizations depend upon

Defendants for significant funding and, in some cases, for their survival. They were involved not only

in generating materials and programs for doctors and patients that supported chronic opioid therapy,

but also in assisting Defendants marketing in other waysfor example, responding to negative articles

and advocating against regulatory changes that would constrain opioid prescribing. They developed

and disseminated pro-opioid treatment guidelines; conducted outreach to groups targeted by

Defendants, such as veterans and the elderly; and developed and sponsored CMEs that focused

exclusively on use of opioids to treat chronic pain. Defendants funded these Front Groups in order to

ensure supportive messages from these seemingly neutral and credible third parties, and their funding

did, in fact, ensure such supportive messages.

244. Several representative examples of such Front Groups are highlighted below, but there

are others, too, such as APS, AGS, FSMB, American Chronic Pain Association (ACPA), AAPM,

American Society of Pain Educators (ASPE), NPF, and PPSG.

i. American Pain Foundation

245. The most prominent of Defendants Front Groups was APF, which received more

than $10 million in funding from opioid manufacturers from 2007 until it closed its doors in May

2012. Endo alone provided more than half of that funding; Purdue was next, at $1.7 million.

246. APF issued education guides for patients, reporters, and policymakers that touted the

benefits of opioids for chronic pain and trivialized their risks, particularly the risk of addiction. APF

70
also launched a campaign to promote opioids for returning veterans, which has contributed to high

rates of addiction and other adverse outcomesincluding deathamong returning soldiers. APF also

engaged in a significant multimedia campaignthrough radio, television and the internetto educate

patients about their right to pain treatment, namely opioids. All of the programs and materials were

available nationally and were intended to reach County residents.

247. In addition to Perry Fine, Russell Portenoy, and Scott Fishman, who served on APFs

Board and reviewed its publications, another board member, Lisa Weiss, was an employee of a public

relations firm that worked for both Purdue and APF.

248. In 2009 and 2010, more than 80% of APFs operating budget came from

pharmaceutical industry sources. Including industry grants for specific projects, APF received about

$2.3 million from industry sources out of total income of about $2.85 million in 2009; its budget for

2010 projected receipts of roughly $2.9 million from drug companies out of total income of about $3.5

million. By 2011, APF was entirely dependent on incoming grants from defendants Purdue, Cephalon,

Endo, and others to avoid using its line of credit. As one of its board members, Russell Portenoy,

explained, the lack of funding diversity was one of the biggest problems at APF.

249. APF held itself out as an independent patient advocacy organization. It often engaged

in grassroots lobbying against various legislative initiatives that might limit opioid prescribing, and thus

the profitability of its sponsors. It was often called upon to provide patient representatives for

Defendants promotional activities, including for Purdues Partners Against Pain and Janssens Lets Talk

Pain. As laid out below, APF functioned largely as an advocate for the interests of Defendants, not

patients. Indeed, as early as 2001, Purdue told APF that the basis of a grant was Purdues desire to

strategically align its investments in nonprofit organizations that share [its] business interests.

250. In practice, APF operated in close collaboration with opioid makers. On several

occasions, representatives of the drug companies, often at informal meetings at Front Group

71
conferences, suggested activities and publications APF could pursue. APF then submitted grant

proposals seeking to fund these activities and publications, knowing that drug companies would

support projects conceived as a result of these communications.

251. APF assisted in other marketing projects for drug companies. One project funded by

another drug companyAPF Reporters Guide: Covering Pain and Its Management (2008)84recycled text

that was originally created as part of the companys training document.

252. The same drug company made general grants, but even then, it directed how APF used

them. In response to an APF request for funding to address a potentially damaging state Medicaid

decision related to pain medications generally, the company representative responded, I provided an

advocacy grant to APF this yearthis would be a very good issue on which to use some of that. How

does that work?

253. The close relationship between APF and the drug company was not unique, but in fact

mirrors the relationships between APF and Defendants. APFs clear lack of independencein its

finances, management, and missionand its willingness to allow Defendants to control its activities

and messages, support an inference that each Defendant that worked with APF was able to exercise

editorial control over its publications.

254. Indeed, the U.S. Senate Finance Committee began looking into APF in May 2012 to

determine the links, financial and otherwise, between the organization and the manufacturers of opioid

painkillers. The investigation caused considerable damage to APFs credibility as an objective and

neutral third party and Defendants stopped funding it. Within days of being targeted by Senate

84
https://assets.documentcloud.org/documents/277606/apf-reporters-guide.pdf (accessed May 30,
2017)

72
investigation, APFs board voted to dissolve the organization due to irreparable economic

circumstances. APF cease[d] to exist, effective immediately.85

ii. The American Academy of Pain Medicine

255. The American Academy of Pain Medicine, with the assistance, prompting,

involvement, and funding of Defendants, issued treatment guidelines and sponsored and hosted

medical education programs essential to Defendants deceptive marketing of chronic opioid therapy.

256. AAPM has received over $2.2 million in funding since 2009 from opioid

manufacturers. AAPM maintains a corporate relations council, whose members pay $25,000 per year

(on top of other funding) to participate. The benefits include allowing members to present educational

programs at off-site dinner symposia in connection with AAPMs marquee eventits annual meeting

held in Palm Springs, California, or other resort locations. AAPM describes the annual event as an

exclusive venue for offering education programs to doctors.

257. Membership in the corporate relations council also allows drug company executives

and marketing staff to meet with AAPM executive committee members in small settings. Defendants

Endo, Purdue, Cephalon and Actavis were members of the council and presented deceptive programs

to doctors who attended this annual event.

258. AAPM is viewed internally by Endo as industry friendly, with Endo advisors and

speakers among its active members. Endo attended AAPM conferences, funded its CMEs, and

distributed its publications. The conferences sponsored by AAPM heavily emphasized sessions on

opioids37 out of roughly 40 at one conference alone. AAPMs presidents have included top

85
http://www.painfoundation.org (last visited May 30, 2017).

73
industry-supported KOLs Perry Fine, Russell Portenoy, and Lynn Webster. Dr. Webster was even

elected president of AAPM while under a DEA investigation. Another past AAPM president, Dr.

Scott Fishman, stated that he would place the organization at the forefront of teaching that the

risks of addiction are . . . small and can be managed.86

259. AAPMs staff understood that they and their industry funders were engaged in a

common practice. Defendants were able to influence AAPM through both their significant and regular

funding, and the leadership of pro-opioid KOLs within the organization.

3. Defendants Acted in Concert with KOLs and Front Groups in the Creation,
Promotion, and Control of Unbranded Marketing.

260. Like cigarette manufacturers, which engaged in an industry-wide effort to misrepresent

the safety and risks of smoking, Defendants worked with each other and with the Front Groups and

KOLs they funded and directed to carry out a common scheme to deceptively present the risks,

benefits, and superiority of opioids to treat chronic pain.

261. Defendants acted through and with the same network of Front Groups, funded the

same KOLs, and often used the very same language and format to disseminate the same deceptive

messages. These KOLs have worked reciprocally with Defendants to promote misleading messaging

regarding the appropriate use of opioids to treat chronic pain. Although participants knew this

information was false and misleading, these misstatements were nevertheless disseminated to Shelby

County prescribers and patients.

262. One vehicle for their collective collaboration was Pain Care Forum (PCF). PCF

began in 2004 as an APF project with the stated goals of offering a setting where multiple

organizations can share information and to promote and support taking collaborative action

86
Interview by Paula Moyer with Scott M. Fishman, M.D., Professor of Anesthesiology and Pain
Medicine, Chief of the Division of Pain Medicine, Univ. of Cal., Davis (2005),
http://www.medscape.org/viewarticle/500829 (accessed May 30, 2017).

74
regarding federal pain policy issues. APF President Will Rowe described the Forum as a deliberate

effort to positively merge the capacities of industry, professional associations, and patient

organizations.

263. PCF is comprised of representatives from opioid manufacturers and distributors

(including Cephalon, Endo, Janssen, and Purdue); doctors and nurses in the field of pain care;

professional organizations (e.g., American Academy of Pain Management, APS, and American Society

of Pain Educators); patient advocacy groups (e.g., APF and ACPA); and other like-minded

organizations (e.g., FSMB and Wisconsin Pain & Policy Studies Group), almost all of which received

substantial funding from Defendants.

264. PCF, for example, developed and disseminated consensus recommendations for a

Risk Evaluation and Mitigation Strategy (REMS) for long-acting opioids that the FDA mandated in

2009 to communicate the risks of opioids to prescribers and patients.87 This was critical as a REMS

that went too far in narrowing the uses or benefits, or highlighting the risks of chronic opioid therapy,

would deflate Defendants marketing efforts. The recommendationsdrafted by Will Rowe of APF

claimed that opioids were essential to the management of pain, and that the REMS should

acknowledge the importance of opioids in the management of pain and should not introduce new

barriers.88 Defendants worked with PCF members to limit the reach and manage the message of the

REMS, which enabled them to maintain, and not undermine, their deceptive marketing of opioids for

chronic pain.

87
The FDA can require a drug maker to develop a REMSwhich could entail (as in this case) an
education requirement or distribution limitationto manage serious risks associated with a drug.
88
Defendants also agreed that short-acting opioids should also be included in REMS as not to
disadvantage the long-acting, branded drugs.

75
 4. Defendants Targeted Vulnerable and Lucrative Populations.

a. The Elderly

265. Elderly patients taking opioids have been found to be exposed to elevated fracture

risks, a greater risk for hospitalizations, and increased vulnerability to adverse drug effects and

interactions, such as respiratory depression, which, as Defendants acknowledge in their labels (but not

in their marketing), occurs more frequently in elderly patients. A 2010 paper in the Archives of Internal

Medicine reported that elderly patients who used opioids had a significantly higher rate of death, heart

attacks, and strokes than users of NSAIDs. Defendants targeted marketing to the elderly and the

absence of cautionary language in their promotional materials flies in the face of scientific evidence and

their own labels, and creates a heightened risk of serious injury to elderly patients.

266. Defendants also promoted the notionalso without adequate scientific foundation

that the elderly are particularly unlikely to become addicted to opioids. AGSs 2009 Guidelines, for

example, which Purdue, Endo, and Janssen publicized, described the risk of addiction as exceedingly

low in older patients with no current or past history of substance abuse. Yet, a 2010 study examining

overdoses among long-term opioid users found that patients 65 or older were among those with the

largest number of serious overdoses.

267. Defendants efforts have paid off. Since 2007, prescriptions for the elderly have grown

at twice the rate of prescriptions for adults between the ages of 40 and 59.

b. Veterans

268. Veterans, too, are suffering greatly from the effects of Defendants targeted marketing.

A 2008 survey showed that prescription drug abuse among military personnel doubled from 2002 to

2005, and then nearly tripled again over the next three years. In 2009, military doctors wrote 3.8

76
million prescriptions for narcotic pain pillsfour times as many as they did in 2001. Further, one-third

of veterans prescribed opioids as of 2012 remained on take-home opioids for more than 90 days.

Although many of these veterans are returning from service with traumatic injuries, the increase in

opioid prescribing is disproportionate to the population and, in far too many cases, unsuited for their

treatment. Among former service members receiving VA services nationally in a single year (2005),

1,013 had died of accidental drug overdosesdouble the rate of the civilian population.

269. The County has a substantial population of veterans who must cope with the

consequences of overprescribing opioids.

270. Opioids are particularly dangerous to veterans. According to a study published in the

2013 Journal of American Medicine, veterans returning from Iraq and Afghanistan who were

prescribed opioids have a higher incidence of adverse clinical outcomes, such as overdoses and self-

inflicted and accidental injuries; 40% of veterans with post-traumatic stress disorder received opioids

and benzodiazepines (anti-anxiety drugs) that, when mixed with alcohol, can cause respiratory

depression and death. According to a VA Office of Inspector General Report, despite the risks, 92.6%

of veterans who were prescribed opioid drugs were also prescribed benzodiazepines.89 Again, as with

elderly patients, Defendants both purposefully sought to increase opioid prescribing to this vulnerable

group and omitted from their promotional materials the known, serious risks opioids pose to them.

271. Exit Wounds, a 2009 publication sponsored by Purdue, distributed by APF with grants

from Janssen and Endo, and written as a personal narrative of one veteran, describes opioids as

underused and the gold standard of pain medications and fails to disclose the risk of addiction,

overdose, or injury. It notes that opioid medications increase a persons level of functioning and that

[l]ong experience with opioids shows that people who are not predisposed to addiction are unlikely to

become addicted to opioid pain medications. The book also asserts that [d]enying a person opioid

89
https://www.va.gov/oig/pubs/VAOIG-14-00895-163.pdf (accessed May 30, 2017)

77
pain medication because he or she has a history of substance abuse or addiction is contrary to the

model guidelines for prescribing opioids, published by the U.S. Federation of State Medical Boards.

As laid out above, the FSMB itself received support from Defendants during the time it created and

published its guidelines.

272. Exit Wounds minimizes the risks of chronic opioid therapy and does not disclose the

risk that opioids may have fatal interactions with benzodiazepines, which were taken by a significant

number of veterans.90 It is not the unbiased narrative of a returning war veteran. It is pure marketing,

sponsored by Purdue, Endo, and Janssen. Yet, Janssen, for example, supported the marketing effort,

and its insufficient disclosures, despite acknowledging on the label for its opioid Duragesic that its use

with benzodiazepines may cause respiratory depression, hypotension, and profound sedation or

potentially result in coma. A similar warning is found on the labels of other Defendants opioids.

273. The deceptive nature of Exit Wounds is obvious in comparing it to guidance on opioids

published by the VA and DOD in 2010 and 2011. The VAs Taking Opioids Responsibly describes

opioids as dangerous. It cautions against taking extra doses and mentions the risk of overdose and

the dangers of interactions with alcohol. The list of side effects from opioids includes decreased

hormones, sleep apnea, hyperalgesia, addiction, immune system changes, birth defects and death

none of which is disclosed in Exit Wounds.

D. Why Defendants Marketing Messages Are Misleading and Unfair

274. Defendants marketing of opioids for long-term use to treat chronic pain, both directly

and with and through third parties, included information that was false, misleading, contrary to

credible scientific evidence and their own labels, and lacked balance and substantiation. Their

90
FDA guidance states that materials designed to target a particular audience should disclose risks
particular to that audience. See FDA Notice, Guidance for Industry, Brief Summary and Adequate
Directions for Use: Disclosing Risk Information in Consumer-Directed Print Advertisements and
Promotional Labeling for Prescription Drugs, August 6, 2015.

78
marketing materials omitted material information about the risks of opioids, and overstated their

benefits. Moreover, Defendants inaccurately suggested that chronic opioid therapy was supported by

evidence, and failed to disclose the lack of evidence in support of treating chronic pain with opioids.

275. There are seven primary misleading and unfounded representations. Defendants and

the third parties with which they teamed:

misrepresented that opioids improve function;

concealed the link between long-term use of opioids and addiction;

misrepresented that addiction risk can be managed;

masked the signs of addiction by calling them pseudoaddiction;

falsely claimed withdrawal is easily managed;

misrepresented or omitted the greater dangers from higher doses of opioids; and

deceptively minimized the adverse effects of opioids and overstated the risks of

NSAIDs.

276. In addition to these misstatements, Purdue purveyed an eighth deception that

OxyContin provides a full 12 hours of pain relief.

277. Exacerbating each of these misrepresentations and deceptions was the collective effort

of Defendants and third parties to hide from the medical community the fact that the FDA is not

aware of adequate and well-controlled studies of opioid use longer than 12 weeks.91

1. Defendants and Their Third-Party Allies Misrepresented that Opioids Improve

Function

278. Each of the following materials was created with the expectation that, by instructing

patients and prescribers that opioids would improve patients function and quality of life, patients

91
Letter from Janet Woodcock, M.D., Dir., Ctr. for Drug Eval. & Res., to Andrew Kolodny, M.D.,
Pres. Physicians for Responsible Opioid Prescribing, Re Docket No. FDA-2012-P-0818 (Sept. 10,
2013).

79
would demand opioids and doctors would prescribe them. These claims also encouraged doctors to

continue opioid therapy in the belief that failure to improve pain, function, or quality of life, could be

overcome by increasing doses or prescribing supplemental short-acting opioids to take on an as-

needed basis for breakthrough pain.

279. However, not only is there no evidence of improvement in long-term functioning, a

2006 study-of-studies found that [f]or functional outcomes . . . other analgesics were significantly

more effective than were opioids.92 Studies of the use of opioids in chronic conditions for which they

are commonly prescribed, such as low back pain, corroborate this conclusion and have failed to

demonstrate an improvement in patients function. Instead, research consistently shows that long-term

opioid therapy for patients who have lower back injuries does not cause patients to return to work or

physical activity. 93 Indeed, one Defendants own internal marketing plans characterized functional

improvement claims as aspirational. Another acknowledged in 2012 that [s]ignificant investment in

clinical data [was] needed to establish opioids effect on mitigating quality of life issues, like social

isolation.

280. The long-term use of opioids carries a host of serious side effects, including addiction,

mental clouding and confusion, sleepiness, hyperalgesia, and immune-system and hormonal

dysfunction that degrade, rather than improve, patients ability to function. Defendants often omitted

these adverse effects as well as certain risks of drug interactions from their publications.

92
Andrea D. Furlan et al., Opioids for chronic noncancer pain: a meta-analysis of effectiveness and side effects,
174(11) Can. Med. Assn J. 1589-1594 (2006). This study revealed that efficacy studies do not typically
include data on opioid addiction, such that, if anything, the data overstate effectiveness.
93
Moreover, users of opioids had the highest increase in the number of headache days per month,
scored significantly higher on the Migraine Disability Assessment (MIDAS), and had higher rates of
depression, compared to non-opioid users. They also were more likely to experience sleepiness,
confusion, and rebound headaches, and reported a lower quality of life than patients taking other
medications.

80
 281. Yet each of the following statements by Defendants, suggests that the long-term use of

opioids improve patients function and quality of life, and that scientific evidence supports this claim.

Actavis a. Documents from a 2010 sales training indicate that Actavis trained its sales
force to instruct prescribers that most chronic benign pain patients do have
markedly improved ability to function when maintained on chronic opioid
therapy. (Emphasis added.)

b. Documents from a 2010 sales training indicate that Actavis trained its sales force
that increasing and restoring function is an expected outcome of chronic
Kadian therapy, including physical, social, vocational, and recreational function.

c. Actavis distributed a product advertisement that claimed that use of Kadian to

treat chronic pain would allow patients to return to work, relieve stress on your
body and your mental health, and cause patients to enjoy their lives. The
FDA warned Actavis that such claims were misleading, writing: We are not
aware of substantial evidence or substantial clinical experience demonstrating
that the magnitude of the effect of the drug has in alleviating pain, taken
together with any drug-related side effects patients may experience . . .
results in any overall positive impact on a patients work, physical and mental
functioning, daily activities, or enjoyment of life.94

d. Actavis sales representatives told Shelby County prescribers that prescribing

Actaviss opioids would improve their patients ability to function and improve
their quality of life.

94
Warning Letter from Thomas Abrams, Dir., FDA Div. of Mktg., Adver., & Commcns, to Doug
Boothe, CEO, Actavis Elizabeth LLC (Feb. 18. 2010), available at
http://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/EnforcementActivitiesbyF
DA/WarningLettersandNoticeofViolationLetterstoPharmaceuticalCompanies/ucm259240.htm.

81
 e. Cephalon sponsored the FSMBs Responsible Opioid Prescribing (2007),
which taught that relief of pain itself improved patients function. Responsible
Cephalon Opioid Prescribing explicitly describes functional improvement as the goal of a
long-term therapeutic treatment course. Cephalon also spent $150,000 to
purchase copies of the book in bulk and distributed the book through its pain
sales force to 10,000 prescribers and 5,000 pharmacists.

f. Cephalon sponsored the American Pain Foundations Treatment Options: A

Guide for People Living with Pain (2007), which taught patients that opioids, when
used properly give [pain patients] a quality of life we deserve. The Treatment
Options guide notes that non-steroidal anti-inflammatory drugs have greater risks
associated with prolonged duration of use, but there was no similar warning for
opioids. APF distributed 17,200 copies in one year alone, according to its 2007
annual report. The publication is also currently available online.

g. Cephalon sponsored a CME written by key opinion leader Dr. Lynn Webster,
titled Optimizing Opioid Treatment for Breakthrough Pain, which was offered online
by Medscape, LLC from September 28, 2007, to December 15, 2008.
The CME taught that Cephalons Actiq and Fentora improve patients quality of
life and allow for more activities when taken in conjunction with long- acting
opioids.

h. Cephalon sales representatives told Shelby County prescribers that opioids

would increase patients ability to function and improve their quality of life.

82
Endo i. Endo sponsored a website, painknowledge.com, through APF and NIPC,
which, in 2009, claimed that with opioids, your level of function should
improve; you may find you are now able to participate in activities of daily living,
such as work and hobbies, that you were not able to enjoy when your pain was
worse. Endo continued to provide funding for this website through 2012, and
closely tracked unique visitors to it.

j. A CME sponsored by Endo, titled Persistent Pain in the Older Patient, taught that
chronic opioid therapy has been shown to reduce pain and improve
depressive symptoms and cognitive functioning.

k. Endo distributed handouts to prescribers that claimed that use of Opana ER to

treat chronic pain would allow patients to perform work as a chef. This flyer
also emphasized Opana ERs indication without including equally prominent
disclosure of the moderate to severe pain qualification.95

l. Endos sales force distributed FSMBs Responsible Opioid Prescribing (2007), which
taught that relief of pain itself improved patients function. Responsible Opioid
Prescribing explicitly describes functional improvement as the goal of a long-term
therapeutic treatment course.

m. Endo provided grants to APF to distribute Exit Wounds to veterans, which taught
that opioid medications increase your level of functioning (emphasis in the
original). Exit Wounds also omits warnings of the risk of interactions between
opioids and benzodiazepines, which would increase fatality risk.
Benzodiazepines are frequently prescribed to veterans diagnosed with post-
traumatic stress disorder.

n. Endo sales representatives told Shelby County prescribers that opioids would
increase patients ability to function and improve their quality of life by helping
them become more physically active and return to work.

95
FDA regulations require that warnings or limitations be given equal prominence in disclosure, and
failure to do so constitutes misbranding of the product. 21 C.F.R. 202.1(e)(3); see also 21 U.S.C.
331(a).

83
Janssen o. Janssen sponsored a patient education guide titled Finding Relief: Pain
Management for Older Adults (2009), which its personnel reviewed and approved,
and its sales force distributed. This guide features a man playing golf on the
cover and lists examples of expected functional improvement from opioids, like
sleeping through the night, returning to work, recreation, sex, walking, and
climbing stairs. The guide states as a fact that opioids may make it easier for
people to live normally (emphasis in the original). The myth/fact structure
implies authoritative backing for the claims that does not exist. The targeting of
older adults also ignored heightened opioid risks in this population.

p. Janssen sponsored, developed, and approved content of a website, Lets Talk

Pain in 2009, acting in conjunction with the APF, AAPM, and ASPMN, whose
participation in Lets Talk Pain Janssen financed and orchestrated. This website
featured an interview, which was edited by Janssen personnel, claiming that
opioids were what allowed a patient to continue to function, inaccurately
implying her experience would be representative.

q. Janssen provided grants to APF to distribute Exit Wounds to veterans, which

taught that opioid medications increase your level of functioning (emphasis in
the original). Exit Wounds also omits warnings of the risk of interactions between
opioids and benzodiazepines, which would increase fatality risk. Benzodiazepines
are frequently prescribed to veterans diagnosed with post-traumatic stress
disorder.

r. Janssen sales representatives told Shelby County prescribers that opioids would
increase patients ability to function and improve their quality of life by helping
them become more physically active and return to work.

84
Purdue s. Purdue ran a series of advertisements for OxyContin in 2012 in medical journals
titled Pain vignettes, which were case studies featuring patients, each with
pain conditions persisting over several months, recommending OxyContin for
each. One such patient, Paul, is described as a 54-year- old writer with
osteoarthritis of the hands, and the vignettes imply that an OxyContin
prescription will help him work more effectively.

t. Purdue sponsored APFs A Policymakers Guide to Understanding Pain & Its

Management, which inaccurately claimed that multiple clinical studies had
shown that opioids are effective in improving daily function, psychological
health, and health-related quality of life for chronic pain patients. The sole
reference for the functional improvement claim noted the absence of long-term
studies and actually stated: For functional outcomes, the other analgesics were
significantly more effective than were opioids. The Policymakers Guide is still
available online.

u. Purdue sponsored APFs Treatment Options: A Guide for People Living with Pain
(2007), which counseled patients that opioids, when used properly, give [pain
patients] a quality of life we deserve. APF distributed 17,200 copies in one year
alone, according to its 2007 annual report. The guide is currently available
online.

v. Purdue sponsored APFs Exit Wounds (2009), which taught veterans that opioid
medications increase your level of functioning. Exit Wounds also omits
warnings of the risk of interactions between opioids and benzodiazepines, which
would increase fatality risk. Benzodiazepines are frequently prescribed to
veterans diagnosed with post-traumatic stress disorder.

w. Purdue sponsored the FSMBs Responsible Opioid Prescribing (2007), which taught
that relief of pain itself improved patients function. Responsible Opioid
Prescribing explicitly describes functional improvement as the goal of a long-
term therapeutic treatment course. Purdue also spent over $100,000 to
support distribution of the book.

x. Purdue sales representatives told Shelby County prescribers that opioids

would increase patients ability to function and improve their quality of life.

2. Defendants and Their Third-Party Allies Concealed the Truth About the Risk of
Addiction from Long-Term Opioid Use

282. The fraudulent representation that opioids are rarely addictive is central to Defendants

scheme. To reach chronic pain patients Defendants, and the Front Groups and KOLs that they

85
directed, assisted, and collaborated with, had to overcome doctors legitimate fears that opioids would

addict their patients. The risk of addiction is an extremely weighty riskcondemning patients to,

among other things, dependence, compulsive use, haziness, a lifetime of battling relapse, and a

dramatically heightened risk of serious injury or death. But for Defendants campaign to convince

doctors otherwise, finding benefits from opioid use for common chronic pain conditions sufficient to

justify that risk would have, and previously had, posed a nearly insurmountable challenge.

283. Through their well-funded, comprehensive marketing efforts, Defendants and their

KOLs and Front Groups were able to change prescriber perceptions despite the well-settled historical

understanding and clear evidence that opioids taken long-term are often addictive. Defendants and

their third-party partners: (a) brazenly maintained that the risk of addiction for patients who take

opioids long-term was low; and (b) omitted the risk of addiction and abuse from the list of adverse

outcomes associated with chronic opioid use, even though the frequency and magnitude of the risk

and Defendants own labelscompelled disclosure.

284. Further, in addition to falsely claiming opioids had low addiction risk or omitting

disclosure of the risk of addiction altogether, Defendants employed language that conveyed to

prescribers that the drugs had lower potential for abuse and addiction. Further, in addition to making

outright misrepresentations about the risk of addiction, or failing to disclose that serious risk at all,

Defendants used code words that conveyed to prescribers that their opioid was less prone to abuse

and addiction. For instance, sales representatives for Actavis, Endo, Janssen, and Purdue promoted

their drugs as having steady-state properties with the intent and expectation that prescribers would

understand this to mean that their drugs caused less of a rush or a feeling of euphoria, which can

trigger abuse and addiction. Further, Endo actively promoted its reformulated Opana ER on the basis

that it was designed to be crush-resistant, suggesting both (a) that Endo had succeeded in making

the drug harder to adulterate, and (b) that it was less addictive, in consequence. In fact, however, Endo

86
knew that the clinical significance of INTAC Technology or its impact on abuse/misuse has not been

established for Opana ER and that Opana ER could still be ground and cut into small pieces by those

looking to abuse the drug. In the same vein, Janssen denied that Nucynta ER was an opioid and

claimed that it was not addictive, and Purdue claimed that its opioids were not favored by addicts and

did not produce a buzz, all of which falsely suggested that its opioids were less likely to be abused or

addictive.

285. Each of the following was created with the expectation that, by instructing patients and

prescribers that addiction rates are low and that addiction is unlikely when opioids are prescribed for

pain, doctors would prescribe opioids to more patients. For example, one publication sponsored

exclusively by PurdueAPFs 2011 A Policymakers Guide to Understanding Pain & Its Management

claimed that opioids are not prescribed often enough because of misconceptions about opioid

addiction.96

286. Acting directly or with and through third parties, each of the Defendants claimed that

the potential for addiction from its drugs was relatively small, or non-existent, even though there was

no scientific evidence to support those claims, and the available research contradicted them. A recent

literature survey found that while ranges of problematic use of opioids ranged from <1% to 81%, 97

abuse averages between 21% and 29% and addiction between 8% and 12%.98 These estimates are

well in line with Purdues own studies, showing that between 8% and 13% of OxyContin patients

became addicted, but on which Purdue chose not to rely, instead citing the Porter-Jick letter.

96
http://s3.documentcloud.org/documents/277603/apf-policymakers-guide.pdf (accessed May 30,
2017)
97
Cited for the low end of that range was the 1980 Porter-Jick letter in the New England Journal of
Medicine.
98
Kevin Vowels et al., Rates of opioid misuse, abuse, and addiction in chronic pain: a systematic
review and data synthesis, 156 PAIN 569-76 (April 2015).

87
 287. The FDA has found that 20% of opioid patients use two or more pharmacies, 26%

obtain opioids from two or more prescribers, and 16.5% seek early refillsall potential red flags for

abuse or addiction. 99 The FDA in fact has ordered manufacturers of long-acting opioids to

[c]onduct one or more studies to provide quantitative estimates of the serious risks of misuse, abuse,

addiction, overdose and death associated with long-term use of opioid analgesics for management of

chronic pain, in recognition of the fact that it found high rates of addiction in the medical

literature.100

288. Of course, the significant (and growing) incidence of abuse, misuse, and addiction to

opioids is also powerful evidence that Defendants statements regarding the low risk of addiction were,

and are, untrue. This was well-known to Defendants who had access to sales data and reports, adverse

event reports, federal abuse and addiction-related surveillance data, and other sources that

demonstrated the widening epidemic of opioid abuse and addiction.

289. Acting directly or through and with third parties, each of the Defendants claimed that

the potential for addiction even from long-term use of its drugs was relatively small, or non- existent,

despite the fact that the contention was false and there was no scientific evidence to support it.

Examples of these misrepresentations are laid out below:

99
Len Paulozzi, M.D., Abuse of Marketed Analgesics and Its Contribution to the National Problem
of Drug Abuse, available at http://www.fda.gov/downloads/AdvisoryCommittees/
CommitteesMeetingMaterials/Drugs/AnestheticAndLifeSupportDrugsAdvisoryCommittee/UCM233
244.pdf (accessed May 30, 2017)
100
September 10, 2013 letter from Bob Rappaport, M.D., to NDA applicants of ER/LA opioid
analgesics, available at http://www.fda.gov/downloads/Drugs/DrugSafety/InformationbyDrugClass/
UCM367697.pdf (accessed May 30, 2017).; Letter from Janet Woodcock, M.D., Dir., Ctr. for Drug
Eval. & Res., to Andrew Kolodny, M.D., Pres. Physicians for Responsible Opioid Prescribing, Re
Docket No. FDA-2012-P-0818 (Sept. 10, 2013).

88
Actavis a. Documents from a 2010 sales training indicate that Actavis trained its sales
force that long-acting opioids were less likely to produce addiction than short-
acting opioids, although there is no evidence that either form of opioid is less
addictive or that any opioids can be taken long-term without the risk of
addiction.

b. Actavis had a patient education brochure distributed in 2007 that claimed

addiction is possible, but it is less likely if you have never had an addiction
problem. Although the term less likely is not defined, the overall
presentation suggests the risk is so low as not to be a worry.

c. Kadian sales representatives told Shelby County prescribers that Kadian was
steady state and had extended release mechanisms, the implication of which
was that it did not produce a rush or euphoric effect, and therefore was less
addictive and less likely to be abused.

d. Kadian sales representatives told Shelby County prescribers that the contents
of Kadian could not be dissolved in water if the capsule was opened, implying
that Kadian was less likely to be abusedand thereby less addictivethan
other opioids.

e. Kadian sales representatives omitted any discussion of addiction risks related

to Actaviss drugs to County prescribers.

Cephalon f. Cephalon sponsored and facilitated the development of a guidebook, Opioid

Medications and REMS: A Patients Guide, which claims, among other things,
that patients without a history of abuse or a family history of abuse do not
commonly become addicted to opioids.

g. Cephalon sponsored APFs Treatment Options: A Guide for People Living with Pain
(2007), which taught that addiction is rare and limited to extreme cases of
unauthorized dose escalations, obtaining opioids from multiple sources, or
theft.

h. Cephalon sales representatives omitted any discussion of addiction risks

related to Cephalons drugs to County prescribers.

89
Endo i. Endo trained its sales force in 2012 that use of long-acting opioids resulted in
increased patient compliance, without any supporting evidence.

j. Endos advertisements for the 2012 reformulation of Opana ER claimed it

was designed to be crush resistant, in a way that conveyed that it was less likely to
be abused. This claim was false; the FDA warned in a May 10, 2013 letter
that there was no evidence Endos design would provide a reduction in
oral, intranasal or intravenous abuse and Endos post-marketing data
submitted are insufficient to support any conclusion about the overall or
route-specific rates of abuse. Further, Endo instructed its sales
representatives to repeat this claim about design, with the intention of
conveying Opana ER was less subject to abuse.

k. Endo sponsored a website, painknowledge.com, through APF and NIPC,

which, in 2009, claimed that: [p]eople who take opioids as prescribed usually
do not become addicted. Although the term usually is not defined, the
overall presentation suggests the risk is so low as not to be a concern. The
language also implies that, as long as a prescription is given, opioid use will
not become problematic. Endo continued to provide funding for this website
through 2012, and closely tracked unique visitors to it.

l. Endo sponsored a website, PainAction.com, which stated Did you know?

Most chronic pain patients do not become addicted to the opioid medications
that are prescribed for them.

m. Endo sponsored CMEs published by APFs NIPC, of which Endo was the
sole funder, titled Persistent Pain in the Older Adult and Persistent Pain in the Older
Patient. These CMEs claimed that opioids used by elderly patients present
possibly less potential for abuse than in younger patients[,] which lacks
evidentiary support and deceptively minimizes the risk of addiction for elderly
patients.

n. Endo distributed an education pamphlet with the Endo logo titled Living with
Someone with Chronic Pain, which inaccurately minimized the risk of addiction:
Most health care providers who treat people with pain agree that most
people do not develop an addiction problem.

o. Endo distributed a patient education pamphlet edited by key opinion leader

Dr. Russell Portenoy titled Understanding Your Pain: Taking Oral Opioid
Analgesics. It claimed that [a]ddicts take opioids for other reasons [than pain
relief], such as unbearable emotional problems. This implies that pain
patients prescribed opioids will not become addicted, which is unsupported
and untrue.

90
 p. Endo contracted with AGS to produce a CME promoting the 2009 guidelines
for the Pharmacological Management of Persistent Pain in Older Persons.
These guidelines falsely claim that the risks [of addiction] are exceedingly low
in older patients with no current or past history of substance abuse. None of
the references in the guidelines corroborates the claim that elderly patients are
less likely to become addicted to opioids, and there is no such evidence. Endo
was aware of the AGS guidelines content when it agreed to provide this
funding, and AGS drafted the guidelines with the expectation it would seek
drug company funding to promote them after their completion.

q. Endo sales representatives told Shelby County prescribers that its drugs were
steady state, the implications of which was that they did not produce a rush
or euphoric effect, and therefore were less addictive and less likely to be
abused.

r. Endo provided grants to APF to distribute Exit Wounds (2009) to veterans,

which taught that [l]ong experience with opioids shows that people who are
not predisposed to addiction are very unlikely to become addicted to opioid
pain medications. Although the term very unlikely is not defined, the overall
presentation suggests that the risk is so low as not to be a concern.

s. Endo sales representatives omitted discussion of addiction risks related to

Endos drugs.

Janssen t. Janssen sponsored a patient education guide titled Finding Relief: Pain Management
for Older Adults (2009), which its personnel reviewed and approved and which
its sales force distributed. This guide described a myth that opioids are
addictive, and asserts as fact that [m]any studies show that opioids are rarely
addictive when used properly for the management of chronic pain. Although
the term rarely is not defined, the overall presentation suggests the risk is so
low as not to be a concern. The language also implies that as long as a
prescription is given, opioid use is not a problem.

u. Janssen contracted with AGS to produce a CME promoting the 2009 guidelines
for the Pharmacological Management of Persistent Pain in Older Persons. These
guidelines falsely claim that the risks [of addiction] are exceedingly low in older
patients with no current or past history of substance abuse. The study
supporting this assertion does not analyze addiction rates by age and, as already
noted, addiction remains a significant risk for elderly patients. Janssen was
aware of the AGS guidelines content when it agreed to provide this funding,
and AGS drafted the guidelines with the expectation it would seek drug
company funding to promote them after their completion.

91
v. Janssen provided grants to APF to distribute Exit Wounds (2009) to veterans,
which taught that [l]ong experience with opioids shows that people who are
not predisposed to addiction are very unlikely to become addicted to opioid
pain medications. Although the term very unlikely is not defined, the
overall presentation suggests the risk is so low as not to be a concern.

w. Janssen currently runs a website, Prescriberesponsibly.com (last modified July 2,

2015), which claims that concerns about opioid addiction are overstated.

x. A June 2009 Nucynta Training module warns Janssens sales force that
physicians are reluctant to prescribe controlled substances like Nucynta, but
this reluctance is unfounded because the risks . . . are much smaller than
commonly believed.

y. Janssen sales representatives told Shelby County prescribers that its drugs
were steady state, the implication of which was that they did not produce a
rush or euphoric effect, and therefore were less addictive and less likely to be
abused.

z. Janssen sales representatives told Shelby County prescribers that Nucynta and
Nucynta ER were not opioids, implying that the risks of addiction and
other adverse outcomes associated with opioids were not applicable to
Janssens drugs. In truth, however, as set out in Nucyntas FDA-mandated
label, Nucynta contains tapentadol, an opioid agonist and Schedule II
substance with abuse liability similar to other opioid agonists, legal or illicit.

aa. Janssen sales representatives falsely told prescribers that Duragesic had anti
abuse properties when it had none.

bb. Janssens sales representatives told Shelby County prescribers that Nucyntas
unique properties eliminated the risk of addiction associated with the drug.

cc. Janssen sales representatives omitted discussion of addiction risks related to

Janssens drugs.

92
Purdue dd. Purdue published a prescriber and law enforcement education pamphlet in
2011 entitled Providing Relief, Preventing Abuse, which under the heading,
Indications of Possible Drug Abuse, shows pictures of the stigmata of
injecting or snorting opioidsskin popping, track marks, and perforated nasal
septa. In fact, opioid addicts who resort to these extremes are uncommon; the
far more typical reality is patients who become dependent and addicted
through oral use. 101 Thus, these misrepresentations wrongly reassure
doctors that, as long as they do not observe those signs, they need not be
concerned that their patients are abusing or addicted to opioids.

ee. Purdue sponsored APFs A Policymakers Guide to Understanding Pain & Its
Management, which inaccurately claimed that less than 1% of children
prescribed opioids will become addicted. This publication is still available
online. This publication also asserted that pain is undertreated due to
misconceptions about opioid addiction.

ff. Purdue sponsored APFs Treatment Options: A Guide for People Living with Pain
(2007), which asserted that addiction is rare and limited to extreme cases of
unauthorized dose escalations, obtaining opioids from multiple sources, or
theft.

gg. A Purdue-funded study with a Purdue co-author claimed that evidence that
the risk of psychological dependence or addiction is low in the absence of a
history of substance abuse.102 The study relied only on the Porter-Jick letter
to the editor concerning a chart review of hospitalized patients, not patients
taking Purdues long-acting, take-home opioid. Although the term low is
not defined, the overall presentation suggests the risk is so low as not to be a
concern.

hh. Purdue contracted with AGS to produce a CME promoting the 2009
guidelines for the Pharmacological Management of Persistent Pain in Older Persons.
These guidelines falsely claim that the risks [of addiction] are exceedingly low
in older patients with no current or past history of substance abuse. None of
the references in the guidelines corroborates the claim that elderly patients are
less likely to become addicted to opioids and the claim is, in fact, untrue.
Purdue was aware of the AGS guidelines content when it agreed to provide
this funding, and AGS drafted the guidelines with the expectation it would
seek drug company funding to promote them after their completion.

101
Purdue itself submitted briefing materials in October 2010 to a meeting of the FDAs Joint Meeting
of the Anesthetic and Life Support Drugs Advisory Committee and the Drug Safety and Risk
Management Advisory Committee in which it stated that OxyContin was used non-medically by
injection 4-17% of the time.
102
C. Peter N. Watson et al., Controlled-release oxycodone relieves neuropathic pain: a randomized controlled trial I
painful diabetic neuropathy, 105 Pain 71 (2003).

93
 ii. Purdue sponsored APFs Exit Wounds (2009), which counseled veterans that
[l]ong experience with opioids shows that people who are not
predisposed to addiction are very unlikely to become addicted to opioid pain
medications. Although the term very unlikely is not defined, the overall
presentation suggests it is so low as not to be a worry.

jj. Purdue sales representatives told Shelby County prescribers that its drugs were
steady state, the implication of which was that they did not produce a rush or
euphoric effect, and therefore were less addictive and less likely to be abused.

kk. Purdue sales representatives told Shelby County prescribers that Butrans has a
lower abuse potential than other drugs because it was essentially tamper- proof
and, after a certain point, patients no longer experience a buzz from
increased dosage.

ll. Advertisements that Purdue sent to Shelby County prescribers stated that
OxyContin ER was less likely to be favored by addicts, and, therefore, less
likely to be abused or diverted, or result in addiction.

mm. Purdue sales representatives omitted discussion of addiction risk related to

Purdues drugs.

290. In addition to denying or minimizing the risk of addiction and abuse generally,

Defendants also falsely claimed that their particular drugs were safer, less addictive, and less likely to be

abused or diverted than their competitors or predecessor drugs. In making these claims, Defendants

said or implied that because their drug had a steady-state and did not produce peaks and valleys,

which cause drug-seeking behavioreither to obtain the high or avoid the lowit was less likely to be

abused or addicting. Endo also asserted in particular that, because a reformulation of Opana ER was

(or was designed to be) abuse-deterrent or tamper-resistant, patients were less likely to become

addicted to it. Defendants had no evidence to support any of these claims, which, by FDA regulation,

must be based on head-to-head trials; 103 the claims also were false and misleading in that they

misrepresented the risks of both the particular drug and opioids as a class.

103
See Guidance for Industry, Abuse-Deterrent OpioidsEvaluation and Labeling, April 2015
(describing requirements for premarket and postmarket studies).

94
 291. Further, rather than honestly disclose the risk of addiction, Defendants, and the third

parties they directed and assisted and whose materials they distributed, attempted to portray those who

were concerned about addiction as unfairly denying treatment to needy patients. To increase pressure

on doctors to prescribe chronic opioid therapy, Defendants turned the tables; it was doctors who fail

to treat their patients chronic pains with opioidsnot doctors who cause their patients to become

addicted to opioidswho are failing their patients (and subject to discipline). Defendants and their

third-party allies claimed that purportedly overblown worries about addiction cause pain to be under-

treated and opioids to be over-regulated and under-prescribed. This mantra of under-treated pain and

under-used drugs reinforced Defendants messages that the risks of addiction and abuse were not

significant and were overblown.

292. For example, Janssens website, Lets Talk Pain, warns in a video posted online that

strict regulatory control has made many physicians reluctant to prescribe opioids. The unfortunate

casualty in all of this is the patient, who is often undertreated and forced to suffer in silence. The

program goes on to say: Because of the potential for abusive and/or addictive behavior, many

healthcare professionals have been reluctant to prescribe opioids for their patients . . . . This

prescribing environment is one of many barriers that may contribute to the undertreatment of pain, a

serious problem in the United States.

293. In the same vein, a Purdue website called In the Face of Pain complains, under the

heading of Protecting Access, that, through at least mid-2013, policy governing the prescribing of

opioids was at odds with best medical practices by unduly restricting the amounts that can be

prescribed and dispensed; restricting access to patients with pain who also have a history of

substance abuse; and requiring special government-issued prescription forms only for the

medications that are capable of relieving pain that is severe. This unsupported and untrue rhetoric

95
aims to portray doctors who do not prescribe opioids as uncaring, converting their desire to relieve

patients suffering into a mandate to prescribe opioids.

3. Defendants and Their Third-Party Allies Misrepresented that Addiction Risk Can
Be Avoided or Managed

294. To this day, defendants each continue to maintain that most patients can safely take

opioids long-term for chronic pain without becoming addicted. Presumably only to explain why

doctors encounter so many patients addicted to opioids, Defendants and their third-party allies have

come to admit that some patients could become addicted, but that doctors can avoid or manage that

risk by using screening tools or questionnaires. These tools, they say, identify those with higher

addiction risks (stemming from personal or family histories of substance abuse, mental illness, or

abuse) so that doctors can more closely monitor patients at greater risk of addiction.

295. There are three fundamental flaws in these assurances that doctors can identify and

manage the risk of addiction. First, there is no reliable scientific evidence that screening works to

accurately predict risk or reduce rates of addiction. Second, there is no reliable scientific evidence that

high-risk or addicted patients can take opioids long-term without triggering addiction, even with

enhanced monitoring and precautions. Third, there is no reliable scientific evidence that patients

without these red flags are necessarily free of addiction risk.

296. Addiction is difficult to predict on a patient-by-patient basis, and there are no reliable,

validated tools to do so. A recent Evidence Report by the Agency for Healthcare Research and Quality

(AHRQ), which systematically review[ed] the current evidence on long-term opioid therapy for

chronic pain identified [n]o study that had evaluated the effectiveness of risk mitigation strategies,

such as use of risk assessment instruments, opioid management plans, patient education, urine drug

screening, prescription drug monitoring program data, monitoring instruments, more frequent

monitoring intervals, pill counts, or abuse- deterrent formulations on outcomes related to overdose,

96
addiction, abuse or misuse.104 Furthermore, attempts to treat high-risk patients, such as those who

have a documented predisposition to substance abuse, by resorting to patient contracts, more frequent

refills, or urine drug screening are not proven to work in the real world, if busy doctors even in fact

attempt them.

297. Most disturbingly, despite the widespread use of screening tools, patients with past

substance use disorderswhich every tool rates as a risk factorreceive, on average, higher doses of

opioids.

298. Each Defendant claimed that the risk of addiction could be avoided or managed,

claims that are deceptive and without scientific support:

Actavis a. Documents from a 2010 sales training indicate that Actavis trained its sales
force that prescribers can use risk screening tools to limit the development of
addiction.

Cephalon b. Cephalon sponsored APFs Treatment Options: A Guide for People Living with Pain
(2007), which taught patients that opioid agreements between doctors and
patients can ensure that you take the opioid as prescribed.

Endo c. Endo paid for a 2007 supplement105 available for continuing education credit
in the Journal of Family Practice. This publication, titled Pain Management
Dilemmas in Primary Care: Use of Opioids, recommended screening patients
using tools like the Opioid Risk Tool or the Screener and Opioid Assessment
for Patients with Pain, and advised that patients at high risk of addiction could
safely (e.g., without becoming addicted) receive chronic opioid therapy using a
maximally structured approach involving toxicology screens and pill counts.

Purdue d. Purdues unbranded website, In the Face of Pain (inthefaceofpain.com) states

that policies that restrict[] access to patients with pain who also have a
history of substance abuse and requiring special government-issued
prescription forms for the only medications that are capable of relieving pain
that is severe are at odds with best medical practices.106

104
The Effectiveness and Risks of Long-term Opioid Treatment of Chronic Pain, Agency for Healthcare Res. &
Quality (September 19, 2014).
105
The Medical Journal, The Lancet found that all of the supplement papers it received failed peer-
review. Editorial, The Perils of Journal and Supplement Publishing, 375 The Lancet 9712 (347) 2010.
106
See In the Face of Pain Fact Sheet: Protecting Access to Pain Treatment, Purdue Pharma L.P. (Resources
verified Mar. 2012),

97
 e. Purdue sponsored a 2012 CME program taught by a KOL titled Chronic Pain
Management and Opioid Use: Easing Fears, Managing Risks, and Improving
Outcomes. This presentation recommended that use of screening tools, more
frequent refills, and switching opioids could treat a high-risk patient showing
signs of potentially addictive behavior.

f. Purdue sponsored a 2011 webinar taught by Dr. Lynn Webster, titled

Managing Patients Opioid Use: Balancing the Need and Risk. This
publication taught prescribers that screening tools, urine tests, and patient
agreements have the effect of preventing overuse of prescriptions and
overdose deaths.

g. Purdue sales representatives told Shelby County prescribers that screening

tools can be used to select patients appropriate for opioid therapy and to
manage the risks of addiction.

4. Defendants and Their Third-Party Allies Created Confusion By Promoting the

Misleading Term Pseudoaddiction.

299. Defendants and their third-party allies developed and disseminated each of the

following misrepresentations with the intent and expectation that, by instructing patients and

prescribers that signs of addiction are actually the product of untreated pain, doctors would prescribe

opioids to more patients and continue to prescribing them, and patients would continue to use opioids

despite signs that the patient was addicted. The concept of pseudoaddiction was coined by Dr.

David Haddox, who went to work for Purdue, and popularized by Dr. Russell Portenoy, who

consulted for Cephalon, Endo, Janssen, and Purdue. Much of the same language appears in other

Defendants treatment of this issue, highlighting the contrast between undertreated pain and true

addiction, as if patients could not experience both. As KOL Dr. Lynn Webster wrote:

www.inthefaceofpain.com/content/uploads/2011/12/factsheet_ProtectingAccess.pdf (accessed May

30, 2017).

98
[Pseudoaddiction] obviously became too much of an excuse to give patients more medication.. . . It

led us down a path that caused harm. It is already something we are debunking as a concept.107

300. Each of the publications and statements below falsely states or suggests that the

concept of pseudoaddiction is substantiated by scientific evidence and accurately describes the

condition of patients who only need, and should be treated with, more opioids:

Actavis a. Documents from a 2010 sales training indicate that Actavis trained its sales
force to instruct physicians that aberrant behaviors like self-escalation of doses
constituted pseudoaddiction.

Cephalon b. Cephalon sponsored FSMBs Responsible Opioid Prescribing (2007), which taught
that behaviors such as requesting drugs by name, demanding or
manipulative behavior, seeing more than one doctor to obtain opioids, and
hoarding are all signs of pseudoaddiction. Cephalon also spent $150,000 to
purchase copies of the book in bulk and distributed it through its pain sales
force to 10,000 prescribers and 5,000 pharmacists.

Endo c. Endo distributed copies of a book by KOL Dr. Lynn Webster entitled Avoiding
Opioid Abuse While Managing Pain (2007). Endos internal planning documents
describe the purpose of distributing this book as to [i]ncrease the breadth and
depth of the Opana ER prescriber base. The book claims that when faced
with signs of aberrant behavior, the doctor should regard it as
pseudoaddiction and thus, increasing the dose in most cases . . . should be the
clinicians first response. (emphasis added).

d. Endo spent $246,620 to buy copies of FSMBs Responsible Opioid Prescribing

(2007), which was distributed by Endos sales force. This book asserted that
behaviors such as requesting drugs by name, demanding or manipulative
behavior, seeing more than one doctor to obtain opioids, and hoarding, are all
signs of pseudoaddiction.

Janssen e. From 2009 to 2011 Janssens website, Lets Talk Pain, stated that
pseudoaddiction . . . refers to patient behaviors that may occur when pain is
under-treated and that [p]seudoaddiction is different from true addiction
because such behaviors can be resolved with effective pain management.
(emphasis added).

107
John Fauber & Ellen Gabler, Networking Fuels Painkiller Boom, Milwaukee Wisc. J. Sentinel (Feb.19,
2012).

99
Purdue f. Purdue published a prescriber and law enforcement education pamphlet in 2011
entitled Providing Relief, Preventing Abuse, which described pseudoaddiction as a
concept that emerged in the literature to describe the inaccurate interpretation
of [drug-seeking behaviors] in patients who have pain that has not been
effectively treated.

g. Purdue distributed to physicians, at least as of November 2006, and posted on

its unbranded website, Partners Against Pain, a pamphlet copyrighted 2005 and
titled Clinical Issues in Opioid Prescribing. This pamphlet included a list of conduct,
including illicit drug use and deception it defined as indicative of
pseudoaddiction or untreated pain. It also states: Pseudoaddiction is a term
which has been used to describe patient behaviors that may occur when pain is
undertreated. . . . Even such behaviors as illicit drug use and deception can
occur in the patients efforts to obtain relief. Pseudoaddiction can be distinguished
from true addiction in that the behaviors resolve when the pain is effectively
treated. (Emphasis added.)

h. Purdue sponsored FSMBs Responsible Opioid Prescribing (2007), which taught that
behaviors such as requesting drugs by name, demanding or manipulative
behavior, seeing more than one doctor to obtain opioids, and hoarding, are all
signs of pseudoaddiction. Purdue also spent over $100,000 to support
distribution of the book.

i. Purdue sponsored APFs A Policymakers Guide to Understanding Pain & Its

Management, which states: Pseudo-addiction describes patient behaviors that
may occur when pain is undertreated. . . . Pseudo-addiction can be distinguished
from true addiction in that this behavior ceases when pain is effectively treated.
(Emphasis added.)

5. Defendants and Their Third-Party Allies Claimed Withdrawal is Simply Managed

301. Defendants and their third-party allies promoted the false and misleading messages

below with the intent and expectation that, by misrepresenting the difficulty of withdrawing from

opioids, prescribers and patients would be more likely to start chronic opioid therapy and would fail to

recognize the actual risk of addiction.

302. In an effort to underplay the risk and impact of addiction, Defendants and their third-

party allies frequently claim that, while patients become physically dependent on opioids, physical

dependence can be addressed by gradually tapering patients doses to avoid the adverse effects of

100
withdrawal. They fail to disclose the extremely difficult and painful effects that patients can experience

when they are removed from opioidseffects that also make it less likely that patients will be able to

stop using the drugs.

303. In reality, withdrawal is prevalent in patients after more than a few weeks of therapy.

Common symptoms of withdrawal include: severe anxiety, nausea, vomiting, headaches, agitation,

insomnia, tremors, hallucinations, delirium, and pain. Some symptoms may persist for months, or even

years, after a complete withdrawal from opioids, depending on how long the patient had been using

opioids. Withdrawal symptoms trigger a feedback loop that drives patients to seek opioids,

contributing to addiction.

304. Each of the publications and statements below falsely states or suggests that

withdrawal from opioids was not a problem and they should not be hesitant about prescribing or using

opioids:

Actavis a. Documents from a 2010 sales training indicate that Actavis trained its sales force
that discontinuing opioid therapy can be handled simply and that it can be
done at home. Actaviss sales representative training claimed opioid withdrawal
would take only a week, even in addicted patients.

Endo b. A CME sponsored by Endo, titled Persistent Pain in the Older Adult, taught that
withdrawal symptoms can be avoided entirely by tapering the dose by 10-20%
per day for ten days.

101
Janssen c. A Janssen PowerPoint presentation used for training its sales representatives
titled Selling Nucynta ER indicates that the low incidence of withdrawal
symptoms is a core message for its sales force. This message is repeated in
numerous Janssen training materials between 2009 and 2011. The studies
supporting this claim did not describe withdrawal symptoms in patients taking
Nucynta ER beyond 90 days or at high doses and would therefore not be
representative of withdrawal symptoms in the chronic pain population. Patients
on opioid therapy long-term and at high doses will have a harder time
discontinuing the drugs and are more likely to experience withdrawal symptoms.
In addition, in claiming a low rate of withdrawal symptoms, Janssen relied upon
a study that only began tracking withdrawal symptoms in patients two to four
days after discontinuing opioid use; Janssen knew or should have known that
these symptoms peak earlier than that for most patients. Relying on data after
that initial window painted a misleading picture of the likelihood and severity of
withdrawal associated with chronic opioid therapy. Janssen also knew or should
have known that the patients involved in the study were not on the drug long
enough to develop rates of withdrawal symptoms comparable to rates of
withdrawal suffered by patients who use opioids for chronic painthe use for
which Janssen promoted Nucynta ER.

d. Janssen sales representatives told Shelby County prescribers that patients on

Janssens drugs were less susceptible to withdrawal than those on other opioids.

Purdue e. Purdue sponsored APFs A Policymakers Guide to Understanding Pain & Its
Management, which taught that Symptoms of physical dependence can often be
ameliorated by gradually decreasing the dose of medication during
discontinuation, but did not disclose the significant hardships that often
accompany cessation of use.

f. Purdue sales representatives told Shelby County prescribers that the effects of
withdrawal from opioid use can be successfully managed.

g. Purdue sales representatives told Shelby County prescribers that the potential for
withdrawal on Butrans was low due to Butranss low potency and its extended
release mechanism.

6. Defendants and Their Third-Party Allies Misrepresented that Increased Doses Pose
No Significant Additional Risks

102
 305. Each of the following misrepresentations was created with the intent and expectation

that, by misrepresenting and failing to disclose the known risks of high dose opioids, prescribers and

patients would be more likely to continue to prescribe and use opioids, even when they were not

effective in reducing patients pain, and not to discontinue opioids even when tolerance required them

to reach even higher doses.

306. Defendants and their third-party allies claimed that patients and prescribers could

increase doses of opioids indefinitely without added risk, even when pain was not decreasing or when

doses had reached levels that were frighteningly high, suggesting that patients would eventually reach

a stable, effective dose. Each of Defendants claims also omitted warnings of increased adverse effects

that occur at higher doses, and misleadingly suggested that there was no greater risk to higher dose

opioid therapy.

307. These claims are false. Patients receiving high doses of opioids as part of long-term

opioid therapy are three to nine times more likely to suffer an overdose from opioid-related causes

than those on low doses. As compared to available alternative pain remedies, scholars have suggested

that tolerance to the respiratory depressive effects of opioids develops at a slower rate than tolerance

to analgesic effects. Accordingly, the practice of continuously escalating doses to match pain tolerance

can, in fact, lead to overdose even where opioids are taken as recommended. The FDA has itself

acknowledged that available data suggest a relationship between increased doses and the risk of

adverse effects. Moreover, it is harder for patients to terminate use of higher-dose opioids without

severe withdrawal effects, which contributes to a cycle of continued use, even when the drugs provide

no pain relief and are causing harmthe signs of addiction.

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 308. Each of the following claims suggests that high-dose opioid therapy is safe:

Actavis a. Documents from a 2010 sales training indicate that Actavis trained its sales force
that individualization of opioid therapy depended on increasing doses until
patient reports adequate analgesia and to set dose levels on [the] basis of
patient need, not on [a] predetermined maximal dose. Actavis further
counseled its sales representatives that the reasons some physicians had for not
increasing doses indefinitely were simply a matter of physician comfort level,
which could be overcome or used as a tool to induce them to switch to Actaviss
opioid, Kadian.

Cephalon b. Cephalon sponsored APFs Treatment Options: A Guide for People Living with Pain
(2007), which claimed that some patients need a larger dose of their opioid,
regardless of the dose currently prescribed.

c. Cephalon sponsored a CME written by KOL Dr. Lynn Webster, Optimizing

Opioid Treatment for Breakthrough Pain, which was offered online by Medscape,
LLC from September 28, 2007 through December 15, 2008. The CME taught
that non-opioid analgesics and combination opioids that include aspirin and
acetaminophen are less effective to treat breakthrough pain because of dose
limitations.

d. Cephalon sales representatives assured Shelby County prescribers that opioids

were safe, even at high doses.

Endo e. Endo sponsored a website, painknowledge.com, through APF and NIPC, which,
in 2009, claimed that opioids may be increased until you are on the right dose
of medication for your pain, and once that occurred, further dose increases
would not occur. Endo funded the site, which was a part of Endos marketing
plan, and tracked visitors to it.

f. Endo distributed a patient education pamphlet edited by KOL Dr. Russell

Portenoy titled Understanding Your Pain: Taking Oral Opioid Analgesics. In Q&A
format, it asked: If I take the opioid now, will it work later when I really need
it? The response was: The dose can be increased . . . . You wont run out of
pain relief.

Janssen g. Janssen sponsored a patient education guide entitled Finding Relief: Pain
Management for Older Adults (2009), which its personnel reviewed and approved an
its sales force distributed. This guide listed dose limitations as disadvantages of
other pain medicines and omitted any discussion of risks of increased doses of
opioids. The publication also falsely claimed that it is a myth that opioid
doses have to be bigger over time.

104
Purdue h. Purdues In the Face of Pain website, along with initiatives of APF, promoted the
notion that if a patients doctor does not prescribe them whatin their viewis
a sufficient dose of opioids, they should find another doctor who will. In so
doing, Purdue exerted undue, unfair, and improper influence over prescribers
who face pressure to accede to the resulting demands.

i. Purdue sponsored APFs A Policymakers Guide to Understanding Pain & Its

Management, which taught that dose escalations are sometimes necessary,
even indefinitely high ones. This suggested that high dose opioids are safe and
appropriate and did not disclose the risks from high dose opioids. This
publication is still available online.

j. Purdue sponsored APFs Treatment Options: A Guide for People Living with
Pain (2007), which taught patients that opioids have no ceiling dose and are
therefore the most appropriate treatment for severe pain. The guide also
claimed that some patients need a larger dose of the drug, regardless of the
dose currently prescribed. This language fails to disclose heightened risks at
elevated doses.

k. Purdue sponsored a CME issued by the American Medical Association in 2003,

2007, 2010, and 2013. The CME, Overview of Management Options, was
edited by KOL Dr. Russell Portenoy, among others, and taught that other drugs,
but not opioids, are unsafe at high doses. The 2013 version is still available for
CME credit.

l. Purdue sales representatives told Shelby County prescribers that opioids were
just as effective for treating patients long-term and omitted any discussion that
increased tolerance would require increasing, and increasingly dangerous, doses.

7. Defendants and Their Third-Party Allies Deceptively Omitted or Minimized

Adverse Effects of Opioids and Overstated the Risks of Alternative Forms of Pain
Treatment.

309. Each of the following misrepresentations was created with the intent and expectation

that, by omitting the known, serious risks of chronic opioid therapy, including the risks of addiction,

abuse, overdose, and death, and emphasizing or exaggerating risks of competing products, prescribers

and patients would be more likely to choose opioids. Defendants and their third-party allies routinely

ignored the risks of chronic opioid therapy. These include (beyond the risks associated with misuse,

105
abuse, and addiction): hyperalgesia, a known serious risk associated with chronic opioid analgesic

therapy in which the patient becomes more sensitive to certain painful stimuli over time;108 hormonal

dysfunction; decline in immune function; mental clouding, confusion, and dizziness; increased falls and

fractures in the elderly; neonatal abstinence syndrome (when an infant exposed to opioids prenatally

withdraws from the drugs after birth); and potentially fatal interactions with alcohol or

benzodiazepines, which are used to treat post-traumatic stress disorder and anxiety (disorders

frequently coexisting with chronic pain conditions).109

310. Despite these serious risks, Defendants asserted, or implied, that opioids were

appropriate first-line treatments and safer than alternative treatments, including NSAIDs such as

ibuprofen (Advil, Motrin) or naproxen (Aleve). While NSAIDs can pose significant gastrointestinal,

renal, and cardiac risks, particularly for elderly patients, Defendants exaggerated descriptions of those

risks were deceptive in themselves, and also made their omissions regarding the risks of opioids all the

more striking and misleading. Defendants and their third-party allies described over-the-counter

NSAIDs as life-threatening and falsely asserted that they were responsible for 10,000-20,000 deaths

annually (more than opioids), when in reality the number is closer to 3,200. This description of

NSAIDs starkly contrasted with their representation of opioids, for which the listed risks were nausea,

constipation, and sleepiness (but not addiction, overdose, or death). Compared with NSAIDs, opioids

are responsible for roughly four times as many fatalities annually.

108
Letter from Janet Woodcock, M.D., Dir., Ctr. for Drug Eval. & Res., to Andrew Kolodny, M.D.,
Pres. Physicians for Responsible Opioid Prescribing, Re Docket No. FDA-2012-P-0818 (Sept. 10,
2013).
109
Several of these risks do appear in the FDA-mandated warnings. See, e.g., the August 13, 2015
OxyContin Label, Section 6.2, identifying adverse reactions including: abuse, addiction death,
hyperalgesia, hypogonadism . . . mood altered . . . overdose, palpitations (in the context of withdrawal),
seizures, suicidal attempt, suicidal ideation, syndrome of inappropriate antidiuretic hormone secretion,
and urticaria [hives].

106
 311. As with the preceding misrepresentations, Defendants false and misleading claims

regarding the comparative risks of NSAIDs and opioids had the effect of shifting the balance of

opioids risks and purported benefits. While opioid prescriptions have exploded over the past two

decades, the use of NSAIDs has declined during that same time.

312. Each of the following reflects Defendants deceptive claims and omissions about the

risks of opioids, including in comparison to NSAIDs:

Actavis a. Documents from a 2010 sales training indicate that Actavis trained its sales
force that the ability to escalate doses during long-term opioid therapy, without
hitting a dose ceiling, made opioid use safer than other forms of therapy that
had defined maximum doses, such as acetaminophen or NSAIDs

b. Actavis also trained physician-speakers that maintenance therapy with opioids

can be safer than long-term use of other analgesics, including NSAIDs, for
older persons.

c. Kadian sales representatives told Shelby County prescribers that NSAIDs were
more toxic than opioids.

Cephalon d. Cephalon sponsored APFs Treatment Options: A Guide for People Living with Pain
(2007), which taught patients that opioids differ from NSAIDs in that they
have no ceiling dose and are therefore the most appropriate treatment for
severe pain. The publication attributed 10,000 to 20,000 deaths annually to
NSAID overdose. Treatment Options also warned that risks of NSAIDs increase
if taken for more than a period of months, with no corresponding warning
about opioids.

e. Cephalon sales representatives told County prescribers that NSAIDs were more
toxic than Cephalons opioids

107
Endo f. Endo distributed a case study to prescribers titled Case Challenges in Pain
Management: Opioid Therapy for Chronic Pain. The study cites an example, meant to
be representative, of a patient with a massive upper gastrointestinal bleed
believed to be related to his protracted use of NSAIDs (over eight years), and
recommends treating with opioids instead.

g. Endo sponsored a website, painknowledge.com, through APF and NIPC,

which contained a flyer called Pain: Opioid Therapy. This publication included
a list of adverse effects from opioids that omitted significant adverse effects like
hyperalgesia, immune and hormone dysfunction, cognitive impairment,
tolerance, dependence, addiction, and death. Endo continued to provide
funding for this website through 2012, and closely tracked unique visitors to it.

h. Endo provided grants to APF to distribute Exit Wounds (2009), which omitted
warnings of the risk of interactions between opioids and benzodiazepines,
which would increase fatality risk. Exit Wounds also contained a lengthy
discussion of the dangers of using alcohol to treat chronic pain but did not
disclose dangers of mixing alcohol and opioids.

i. Endo sales representatives told Shelby County prescribers that NSAIDs were
more toxic than opioids.

Janssen j. Janssen sponsored a patient education guide titled Finding Relief: Pain Management
for Older Adults (2009), which its personnel reviewed and approved and its sales
force distributed. This publication described the advantages and disadvantages
of NSAIDs on one page, and the myths/facts of opioids on the facing page.
The disadvantages of NSAIDs are described as involving stomach upset or
bleeding, kidney or liver damage if taken at high doses or for a long time,
adverse reactions in people with asthma, and can increase the risk of heart
attack and stroke. The only adverse effects of opioids listed are upset
stomach or sleepiness, which the brochure claims will go away, and
constipation.

k. Janssen sponsored APFs Exit Wounds (2009), which omits warnings of the risk
of interactions between opioids and benzodiazepines. Janssens label for
Duragesic, however, states that use with benzodiazepines may cause
respiratory depression, [low blood pressure], and profound sedation or
potentially result in coma. Exit Wounds also contained a lengthy discussion of
the dangers of using alcohol to treat chronic pain but did not disclose dangers
of mixing alcohol and opioids.

l. Janssen sales representatives told Shelby County prescribers that Nucynta was

108
 not an opioid, making it a good choice for chronic pain patients who previously
were unable to continue opioid therapy due to excessive side effects. This
statement was misleading because Nucynta is, in fact, an opioid and has the
same effects as other opioids.
Purdue m. Purdue sponsored APFs Exit Wounds (2009), which omits warnings of the risk
of interactions between opioids and benzodiazepines, which would increase
fatality risk. Exit Wounds also contained a lengthy discussion of the dangers of
using alcohol to treat chronic pain but did not disclose dangers of mixing
alcohol and opioids.

n. Purdue sponsored APFs Treatment Options: A Guide for People Living with
Pain (2007), which advised patients that opioids differ from NSAIDs in that
they have no ceiling dose and are therefore the most appropriate treatment
for severe pain. The publication attributes 10,000 to 20,000 deaths annually to
NSAID overdose. Treatment Options also warned that risks of NSAIDs
increase if taken for more than a period of months, with no corresponding
warning about opioids.

o. Purdue sponsored a CME issued by the American Medical Association in 2003,

2007, 2010, and 2013; The 2013 version is still available for CME credit. The
CME, Overview of Management Options, was edited by KOL Dr. Russell
Portenoy, among others, and taught that NSAIDs and other drugs, but not
opioids, are unsafe at high doses.

p. Purdue sales representatives told Shelby County prescribers that NSAIDs were
more toxic than opioids.

109
 8. Purdue Misleadingly Promoted OxyContin as Providing 12 Hours of Relief

313. In addition to making the deceptive statements above, Purdue also dangerously misled

doctors and patients about OxyContins duration and onset of action.

314. Purdue promotes OxyContin as an extended-release opioid, but the oxycodone does

not enter the body on a linear rate. OxyContin works by releasing a greater proportion of oxycodone

into the body upon administration, and the release gradually tapers, as illustrated in the following chart,

which was, upon information and belief, adapted from Purdues own sales materials:110

110
Jim Edwards, How Purdue Used Misleading Charts to Hide OxyContins Addictive Power, CBSNews.com,
Sept. 28, 2011, http://www.cbsnews.com/news/how-purdue-used-misleading-charts-to- hide-
oxycontins-addictive-power/ (accessed May 30, 2017). The 160 mg dose is no longer marketed.
Purdues promotional materials in the past displayed a logarithmic scale, which gave the misleading
impression the concentration remained constant.

110
The reduced release of the drug over time means that the oxycodone no longer provides the same level

of pain relief; as a result, in many patients, OxyContin does not last for the 12 hours for which Purdue

promotes ita fact that Purdue has known at all times relevant to this action.

315. OxyContin tablets provide an initial absorption of approximately 40% of the active

medicine. This has a two-fold effect. First, the initial rush of nearly half of the powerful opioid

OxyContin is roughly twice as powerful as morphinetriggers a powerful psychological response.

OxyContin thus behaves more like an immediate release opioid, which Purdue itself once claimed was

more addicting in its original 1995 FDA-approved drug label. Second, the initial burst of oxycodone

means that there is less of the drug at the end of the dosing period, which results in the drug not

lasting for a full 12 hours and precipitates withdrawal symptoms in patients, a phenomenon known as

end of dose failure. (The FDA found in 2008 that a substantial number of chronic pain patients

111
will experience end-of-dose failure with OxyContin.) The combination of fast onset and end-of-dose

failure makes OxyContin particularly addictive, even compared with other opioids.

316. Purdue nevertheless has falsely promoted OxyContin as if it were effective for a full 12

hours. Its advertising in 2000 included claims that OxyContin provides Consistent Plasma Levels

Over 12 Hours. That claim was accompanied by a chart depicting plasma levels on a logarithmic

scale. The chart minimized the rate of end-of-dose failure by depicting 10 mg in a way that it

appeared to be half of 100 mg in the tables y-axis. That chart, shown below, depicts the same

information as the chart above, but does so in a way that makes the absorption rate appear more

consistent:

317. More recently, other Purdue advertisements also emphasized Q12h (meaning twice-

daily) dosing. These include an advertisement in the February 2005 Journal of Pain and 2006 Clinical

Journal of Pain featuring an OxyContin logo with two pill cups, reinforcing the twice-a-day message.

Other advertisements that ran in the 2005 and 2006 issues of the Journal of Pain depict a sample

prescription for OxyContin, with Q12h handwritten for emphasis.

112
 318. The information that OxyContin did not provide pain relief for a full 12 hours was

known to Purdue, and Purdues competitors, but was not disclosed to general practitioners. Purdues

knowledge of some pain specialists tendency to prescribe OxyContin three times per day instead of

two (which would have compensated for end-of-dose failure) was set out in Purdues internal

documents as early as 1999 and is apparent from MEDWATCH Adverse Event reports for

OxyContin. 111 Even Purdues competitor, Endo, was aware of the problem; Endo attempted to

position its Opana ER drug as offering durable pain relief, which Endo understood to suggest a

contrast to OxyContin. Opana ER advisory board meetings featured pain specialists citing lack of 12-

hour dosing as a disadvantage of OxyContin. Endo even ran advertisements for Opana ER referring

to real 12-hour dosing.

319. Purdues failure to disclose the prevalence of end-of-dose failure meant that prescribers

in Shelby County were not informed of risks relating to addiction, and that they received the

misleading message that OxyContin would be effective for treating chronic pain for the advertised

duration. Furthermore, doctors would compensate by increasing the dose or prescribing rescue

opioids, which had the same effect as increasing the amount of opioids prescribed to a patient.112, 113

111
MEDWATCH refers to the FDAs voluntary adverse event reporting system.
112
Purdues Clinical Issues in Opioid Prescribing, put out in 2005 under Purdues unbranded Partners
Against Pain banner, states that it is recommended that a supplementary immediate-release medication
be provided to treat exacerbations of pain that may occur with stable dosing. References to rescue
medication appear in publications Purdue sponsored such as APFs A Policymakers Guide (2011) and
the 2013 CME Overview of Pain Management Options.
113
The Connecticut Attorney Generals office filed a citizens petition with the FDA on January 27,
2004, requesting that the OxyContin label be amended with a warning not to prescribe the drug more
than twice daily as a means of compensating for end-of-dose failure. The FDA denied this request on
September 11, 2008. The FDA found that the state had failed to present sufficient evidence that more
frequent dosing caused adverse outcomes, but the FDA did not challenge the Connecticut finding that
end-of-dose failure of OxyContin was prevalent. Indeed, the FDA found that end-of-dose failure
affected a substantial number of chronic pain patients prescribed OxyContin.

113
 E. Each Defendant Engaged in Deceptive Marketing, Both Branded and Unbranded, that
Targeted and Reached County Prescribers.

320. Defendantsand the Front Groups and KOLs who depended on and worked

alongside themwere able to affect a sea change in medical opinion in favor of accepting opioids as a

medically necessary long-term treatment for chronic pain. As set forth below, each Defendant

contributed to that result through a combination of both direct marketing efforts and third-party

marketing efforts over which that Defendant exercised editorial control. These deceptive and

misleading statements were directed to, and reached, County prescribers and patients, with the intent

of distorting their views on the risks, benefits, and superiority of opioids for treatment of chronic pain.

321. Defendants engaged in their deceptive marketing campaign, both nationwide and in

Shelby County, using a number of strategies. Defendants trained their sales forces and recruited

physician speakers to deliver these deceptive messages and omissions, and they in turn conveyed them

to prescribers. Defendants also broadly disseminated promotional messages and materials, both by

delivering them personally to doctors during detailing visits and by mailing deceptive advertisements

directly to prescribers. Because they are disseminated by Defendant drug manufacturers and relate to

Defendants drugs, these materials are considered labeling within the meaning of 21 C.F.R. 1.3(a),

which means Defendants are liable for their content.

322. As described below, the County has located a number of County-area prescribers who

received Defendants misrepresentations. Each of the misrepresentations received by these doctors

constitutes an integral piece of a centrally directed marketing strategy to change medical perceptions

regarding the use of opioids to treat chronic pain. Defendants were aware of each of these

misrepresentations, and Defendants approved of them and oversaw their dissemination at the national,

corporate level.

1. Acatvis

114
 323. As described below, Actavis promoted its branded opioid, Kadian, through a highly

deceptive marketing campaign, carried out principally through its sales force and recruited physician

speakers. As internal documents indicate, this campaign rested on a series of misrepresentations and

omissions regarding the risks, benefits, and superiority of opioids, and indeed incorporated each of the

types of deceptive messages. Based on the highly coordinated and uniform nature of Actaviss

marketing, Actavis conveyed these deceptive messages to County prescribers. Actavis did so with the

intent that County prescribers and/or consumers would rely on the messages in choosing to use

opioids to treat chronic pain.114

a. Actavis Deceptive Direct Marketing

324. To help devise its marketing strategy for Kadian, Actavis commissioned a report from

one of its consultants in January 2005 about barriers to market entry. The report concluded that two

major challenges facing opioid manufacturers in 2005 were (i) overcoming concerns regarding the

safety and tolerability of opioids, and (ii) the fact that physicians have been trained to evaluate the

supporting data before changing their respective practice behavior. To address these challenges, the

report advocated a [p]ublication strategy based on placing in the literature key data that influence

members of the target audience with an emphasis . . . on ensuring that the message is believable and

relevant to the needs of the target audience. This would entail the creation of effective copy points .

. . backed by published references and developing and placing publications that demonstrate [the]

efficacy [of opioids] and [their] safety/positive side effect profile. According to the report, this would

allow physicians to reach[] a mental agreement and change their practice behavior without having

first evaluated supporting dataof which Actavis (and other Defendants) had none.

114
Actavis also sold various generic opioids, including Norco, which were widely prescribed in Shelby
County and benefited from Actaviss overall promotion of opioids, but were not directly marketed by
sales representatives.

115
 325. The consulting firm predicted that this manufactured body of literature w[ould], in

turn, provide greater support for the promotional message and add credibility to the brands

advocates based on either actual or perceived scientific exchange in relevant medical literature.

(emphasis added). To this end, it planned for three manuscripts to be written during the first quarter of

2005. Of these, [t]he neuropathic pain manuscript will provide evidence demonstrating KADIAN is

as effective in patients with presumptive neuropathic pain as it is in those with other pain types; [t]he

elderly subanalysis . . . will provide clinicians with evidence that KADIAN is efficacious and well

tolerated in appropriately selected elderly patients and will be targeted to readers in the geriatrics

specialty; and [t]he QDF/BID manuscript will . . . .call attention to the fact that KADIAN is the

only sustained-release opioid to be labeled for [once or twice daily] use. In short, Actavis knew exactly

what each study would showand how that study would fit into its marketing planbefore it was

published. Articles matching Actaviss descriptions later appeared in the Journal of Pain and the Journal of

the American Geriatrics Society.

326. To ensure that messages based on this science reached individual physicians, Actavis

deployed sales representatives, or detailers, to visit prescribers in Shelby County and across the

country. At the peak of Actaviss promotional efforts in 2011, the company spent $6.7 million on

detailing.

327. To track its detailers progress, Actaviss sales and marketing department actively

monitored the prescribing behavior of physicians. It tracked the Kadian prescribing activity of

individual physicians, and assessed the success of its marketing efforts by tabulating how many Kadian

prescriptions a prescriber wrote after he or she had been detailed. As described below, Kadian

monitored numerous County physicians.

328. Actavis also planned to promote Kadian by giving presentations at conferences of

organizations where it believed it could reach a high concentration of pain specialists. Its choice of

116
conferences was also influenced by the hosts past support of opioids. For example, Actavis

documents show that Actavis presented papers concerning Kadian at an annual meeting of AGS

because AGSs guidelines support the use of opioids.

329. Actavis targeted prescribers using both its sales force and recruited physician speakers,

as described below.

i. Actavis Deceptive Sales Training

330. Actaviss sales representatives targeted physicians to deliver sales messages that were

developed centrally and deployed uniformly across the country. These sales representatives were

critical in delivering Actaviss marketing strategies and talking points to individual prescribers.

331. Actaviss strategy and pattern of deceptive marketing is evident in its internal training

materials. A sales education module titled Kadian Learning System trained Actaviss sales

representatives on the marketing messagesincluding deceptive claims about improved function, the

risk of addiction, the false scientific concept of pseudoaddiction, and opioid withdrawalthat sales

representatives were directed and required, in turn, to pass on to prescribers, nationally and in Shelby

County.

332. The sales training module, dated July 1, 2010, includes the misrepresentations

documented in this Complaint, starting with its promise of improved function. The sales training

instructed Actavis sales representatives that most chronic benign pain patients do have markedly

improved ability to function when maintained on chronic opioid therapy, when, in reality, available

data demonstrate that patients on chronic opioid therapy are less likely to participate in daily activities

like work. The sales training also misleadingly implied that the dose of prescription opioids could be

escalated without consequence and omitted important facts about the increased risks of high dose

opioids. First, Actavis taught its sales representatives, who would pass the message on to doctors, that

pain patients would not develop tolerance to opioids, which would have required them to receive

117
increasing doses: Although tolerance and dependence do occur with long-term use of opioids, many

studies have shown that tolerance is limited in most patients with [Chronic pain]. Second, Actavis

instructed its sales personnel that opioid [d]oses are titrated to pain relief, and so no ceiling dose can

be given as to the recommended maximal dose. Actavis failed to explain to its sales representatives

and, through them, to doctors, the greater risks associated with opioids at high doses.

333. Further, the 2010 sales training module highlighted the risks of alternate pain

medications without providing a comparable discussion of the risks of opioids, painting the erroneous

and misleading impression that opioids are safer. Specifically, the document claimed that NSAIDs

prolong the bleeding time by inhibiting blood platelets, which can contribute to bleeding

complications and can have toxic effects on the kidney. Accordingly, Actavis coached its sales

representatives that [t]he potential toxicity of NSAIDs limits their dose and, to some extent, the

duration of therapy since [t]hey should only be taken short term. By contrast, the corresponding

section related to opioids neglects to include a single side effect or risk associated with the use of

opioids, including from long-term use.

334. This sales training module also severely downplayed the main risk associated with

Kadian and other opioidsaddiction. It represented that there is no evidence that simply taking

opioids for a period of time will cause substance abuse or addiction and, instead, [i]t appears likely

that most substance-abusing patients in pain management practices had an abuse problem before

entering the practice. This falsely suggests that few patients would become addicted, that only those

with a prior history of abuse are at risk of opioid addiction, and that doctors could screen for those

patients and safely prescribe to others. To the contrary, opioid addiction affects a significant

population of patients; while patients with a history of abuse may be more prone to addiction, all

patients are at risk, and doctors may not be able to identify, or safely prescribe to, patients at greater

risk.

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 335. The sales training also noted that there were various signs associated with substance

abuse, including past history or family history of substance or alcohol abuse, frequent requests to

change medication because of side effects or lack of efficacy, and a social history of dysfunctional or

high-risk behaviors including multiple arrests, multiple marriages, abusive relationships, etc. This is

misleading, as noted above, because it implies that only patients with these kinds of behaviors and

history become addicted to opioids.

336. Further, the sales training neglected to disclose that no risk-screening tools related to

opioids have ever been scientifically validated. The AHRQ recently issued an Evidence Report that

could identify [n]o study that had evaluated the effectiveness of various risk mitigation strategies

including the types of patient screening implied in Actaviss sales trainingon outcomes related to

overdose, addiction, abuse or misuse.

337. The sales training module also directed representatives to counsel doctors to be on the

lookout for the signs of [p]seudoaddiction, which were defined as [b]ehaviors (that mimic addictive

behaviors) exhibited by patients with inadequately treated pain. However, the concept of

pseudoaddiction is unsubstantiated and meant to mislead doctors and patients about the risks and

signs of addiction.

338. Finally, the 2010 national training materials trivialized the harms associated with opioid

withdrawal by explaining that [p]hysical dependence simply requires a tapered withdrawal should the

opioid medication no longer be needed. This, however, overlooks the fact that the side effects

associated with opiate withdrawal are severe and a serious concern for any person who wishes to

discontinue long-term opioid therapy.

339. The Kadian Learning System module dates from July 2010, but Actavis sales

representatives were passing deceptive messages on to prescribers even before then. A July 2010 Dear

Doctor letter issued by the FDA indicated that [b]etween June 2009 and February 2010, Actavis

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sales representatives distributed . . . promotional materials that . . . omitted and minimized serious risks

associated with [Kadian]. Certain risks that were misrepresented included the risk of [m]isuse,

[a]buse, and [d]iversion of [o]pioids and, specifically, the risk that [o]pioid agonists have the potential

for being abused and are sought by drug abusers and people with addiction disorders and are subject

to criminal diversion. The FDA also took issue with an advertisement for misrepresenting Kadians

ability to help patients live with less pain and get adequate rest with less medication, when the

supporting study did not represent substantial evidence or substantial clinical experience.

340. Actaviss documents also indicate that the company continued to deceptively market its

drugs after 2010. Specifically, a September 2012 Kadian Marketing Update, and the HCP Detail aid

contained therein, noted that Kadians steady state plasma levels ensured that Kadian produced

higher trough concentrations and a smaller degree of peak-to-trough fluctuations than other opioids.

341. Actavis also commissioned surveys of prescribers to ensure Kadian sales

representatives were promoting the steady-state message. That same surveypaid for and reviewed

by Actavisfound repeated instances of prescribers being told by sales representatives that Kadian

had low potential of abuse or addiction. This survey also found that prescribers were influenced by

Actaviss messaging. A number of Kadian prescribers stated that they prescribed Kadian because it was

without the addictive potential and wouldnt be posing high risk for addiction. As a result,

Actaviss marketing documents celebrated a perception among doctors that Kadian had low abuse

potential.

342. Finally, the internal documents of another Defendant, Endo, indicate that

pharmaceutical sales representatives employed by Endo, Actavis, and Purdue discussed the

AAPM/APS Guidelines with doctors during detailing visits. These guidelines deceptively concluded

that the risk of addiction is manageable for patients regardless of past abuse histories.

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 ii. Actavis Deceptive Speaking Training

343. Actavis also increasingly relied on speakersphysicians whom Actavis recruited to

market opioids to their peersto convey similar marketing messages. Actavis set a goal to train 100

new Kadian speakers in 2008 alone, with a plan to set up power lunch teleconferences connecting

speakers to up to 500 participating sites nationwide. Actavis sales representatives, who were required

to make a certain number of sales visits each day and week, saw the definition of sales call expanded to

accommodate these changes; such calls now included physicians breakfast & lunch meetings with

Kadian advocate/speaker.

344. A training program for Actavis speakers included training on many of the same

messages found in the Kadian Learning System, as described below. The deceptive messages in

Actaviss speakers training are concerning for two reasons: (a) the doctors who participated in the

training were, themselves, prescribing doctors, and the training was meant to increase their

prescriptions of Kadian; and (b) these doctors were trained, paid, and directed to deliver these

messages to other doctors who would write prescriptions of Kadian.

345. Consistent with the training for sales representatives, Actaviss speakers training falsely

minimized the risk of addiction posed by long-term opioid use. Actavis claimed, without scientific

foundation, that [o]pioids can be used with minimal risk in chronic pain patients without a history of

abuse or addiction. The training also deceptively touted the effectiveness of Risk Tools, such as the

Opioid Risk Tool, in determining the risk for developing aberrant behaviors in patients being

considered for chronic opioid therapy. In recommending the use of these screening tools, the speakers

training neglected to disclose that none of them had been scientifically validated.

346. The speakers training also made reference to pseudoaddiction as a [c]ondition

characterized by behaviors, such as drug hoarding, that outwardly mimic addiction but are in fact

driven by a desire for pain relief and usually signal undertreated pain. It then purported to assist

121
doctors in identifying those behaviors that actually indicated a risk of addiction from those that did not.

Behaviors it identified as [m]ore suggestive of addiction included [p]rescription forgery,

[i]njecting oral formulations, and [m]ultiple dose escalations or other nonadherence with therapy

despite warnings. Identified as [l]ess suggestive of addiction were [a]ggressive complaining about

the need for more drugs, [r]equesting specific drugs, [d]rug hoarding during periods of reduced

symptoms, and [u]napproved use of the drug to treat another symptom. By portraying the risks in

this manner, the speakers training presentation deceptively gave doctors a false sense of security

regarding the types of patients who can become addicted to opioids and the types of behaviors these

patients exhibit.

347. The speakers training downplayed the risks of opioids, while focusing on the risks of

competing analgesics like NSAIDs. For example, it asserted that Acetaminophen toxicity is a major

health concern. The slide further warned that Acetaminophen poisoning is the most common cause

of acute liver failure in an evaluation of 662 US Subjects with acute liver failure between 1998-2003,

and was titled Opioids can be a safer option than other analgesics. However, in presenting the risks

associated with opioids, the speakers training focused on nausea, constipation, and sleepiness, and

ignored the serious risks of hyperalgesia, hormonal dysfunction, decline in immune function, mental

clouding, confusion, and dizziness; increased falls and fractures in the elderly, neonatal abstinence

syndrome, and potentially fatal interactions with alcohol or benzodiazepines. As a result, the training

exaggerated the risks of NSAIDs, both absolutely and relative to opioids, to make opioids appear to be

a more attractive first-line treatment for chronic pain.

348. The speakers training also misrepresented the risks associated with increased doses of

opioids. For example, speakers were instructed to [s]tart low and titrate until patient reports adequate

analgesia and to [s]et dose levels on [the] basis of patient need, not on predetermined maximal

122
dose. However, the speakers training neglected to warn speakers (and speakers bureau attendees) that

patients on high doses of opioids are more likely to suffer adverse events.

b. Actaviss Deceptive Statements to Shelby County Prescribers and Patients

349. The misleading messages and training materials Actavis provided to its sales force and

speakers were part of a broader strategy to convince prescribers to use opioids to treat their patients

pain, without complete and accurate information about the risks, benefits, and alternatives. This

deception was national in scope and included Shelby County. Actaviss nationwide messages reached

Shelby County prescribers in a number of ways. For example, they were carried into Shelby County by

Actaviss sales representatives during detailing visits as well as made available to County patients and

prescribers through websites and ads, including ads in prominent medical journals. They have also

been delivered to County prescribers by Actaviss paid speakers, who were required by Actavis policy

and by FDA regulations to stay true to Actaviss nationwide messaging.

350. Once trained, Actaviss sales representatives and speakers were directed to, and did,

visit potential prescribers in Shelby County, as elsewhere, to deliver their deceptive messages. These

contacts are demonstrated by Actaviss substantial effort in tracking the habits of individual County

physicians prescribing Kadian, and by the direct evidence of Actavis detailing County prescribers.

351. Actavis tracked, in substantial detail, the prescribing behavior of Shelby County area

physicians.

2. Cephalon

352. At the heart of Cephalons deceptive promotional efforts was a concerted and

sustained effort to expand the market for its branded opioids, Actiq and Fentora, far beyond their

FDA-approved use in opioid-tolerant cancer patients. Trading on their rapid-onset formulation,

Cephalon touted its opioids as the answer to breakthrough paina term its own KOL allies planted

in the medical literaturewhether cancer pain or not. Cephalon promoted this message through its

123
sales force, paid physician speakers, advertisements, and CMEs, even after the FDA issued the

company warnings and rejected an expanded drug indication.

353. Even as it promoted Actiq and Fentora off-label, Cephalon also purveyed many of the

deceptive messages described above. It did so both directlythrough detailing visits and speaker

programsand through the publications and CMEs of its third-party partners. These messages

included misleading claims about functional improvement, addiction risk, pseudoaddiction, and the

safety of alternatives to opioids.

354. Based on the highly coordinated and uniform nature of Cephalons marketing,

Cephalon conveyed these deceptive messages to Shelby County prescribers. The materials that

Cephalon generated in collaboration with third-parties were also distributed or made available in

Shelby County. Cephalon distributed these messages, or facilitated their distribution, in Shelby County

with the intent that Shelby County prescribers and/or consumers would rely on them in choosing to

use opioids to treat chronic pain.

a. Cephalons Deceptive Direct Marketing

355. Like the other Defendants, Cephalon directly engaged in misleading and deceptive

marketing of its opioids through its sales force and branded advertisements. These messages were

centrally formulated and intended to reach prescribers nationwide, including those practicing in the

Shelby County area. Cephalon also spent the money necessary to aggressively promote its opioid

drugs, setting aside $20 million to market Fentora in 2009 alone.

i. Cephalons Fraudulent Off-Label Marketing of Actiq and Fentora

356. Chief among Cephalons direct marketing efforts was its campaign to deceptively

promote its opioids for off-label uses. Cephalon reaps significant revenue from selling its opioids for

treatment of chronic non-cancer pain. However, neither of its two opioid drugs Actiq or Fentora

is approved for this purpose. Instead, both have indications that are very clearly and narrowly defined

124
to limit their use to a particular form of cancer pain. Despite this restriction, and in order to claim its

piece of the broader chronic non-cancer pain market, Cephalon deceptively and unlawfully marketed

Actiq and then Fentora for patients and uses for which they were not safe, effective, or allowed. This

resulted in prescriptions written and paid and, grievously, caused patients to be injured and die.

Cephalons efforts to expand the market for its drugs beyond cancer pain extended to Shelby County

prescribers.

a) Cephalon launched its fraudulent marketing scheme for Actiq

357. Cephalons Actiq is a powerful opioid narcotic that is delivered to the bloodstream by a

lollipop lozenge that dissolves slowly in the mouth. As described by one patient, Actiq tastes like the

most delicious candy you ever ate.115

358. Actiq is appropriately used only to treat breakthrough cancer pain that cannot be

controlled by other medications. Breakthrough pain is a short-term flare of moderate-to- severe pain in

patients with otherwise stable persistent pain. Actiq is a rapid-onset drug that takes effect within 10-15

minutes but lasts only a short time. It is also an extremely strong drug, considered to be at least 80

times more powerful than morphine. Fentanyl, a key ingredient in Actiq, has been linked to fatal

respiratory complications in patients. Actiq is not safe in any dose for patients who are not opioid

tolerant, meaning patients who have taken specific doses of opioids for a week or longer and whose

systems have acclimated to the drugs.

359. In 1998, the FDA approved Actiq ONLY for the management of breakthrough

cancer pain in patients with malignancies who are already receiving and who are tolerant to opioid

115
See John Carreyrou, Narcotic Lollipop Becomes Big Seller Despite FDA Curbs, Wall St. J., Nov. 3, 2006.

125
therapy for their underlying persistent cancer pain. 116 (emphasis in FDA document). Because of

Actiqs dangers, wider, off-label usesas the FDA label makes clearare not permitted:

This product must not be used in opioid non-tolerant patients because life-threatening
respiratory depression and death could occur at any dose in patients not on a chronic
regimen of opioids. For this reason, ACTIQ is contraindicated in the management of
acute or postoperative pain.117

360. Actiq and Fentora are thus intended to be used only in the care of cancer patients and

only by oncologists and pain specialists who are knowledgeable of, and skilled in, the use of Schedule

II opioids to treat cancer pain. Unlike other drugs, of which off-label uses are permitted but cannot be

promoted by the drug maker, Actiq and Fentora are so potent that off- label use for opioid nave

patients is barred by the FDA, as their labels make clear.

361. Notwithstanding the drugs extreme potency and related dangers, and the FDAs

explicit limitations, Cephalon actively promoted Actiq for chronic non-cancer painan unapproved,

off-label use. Cephalon marketed Actiq as appropriate for the treatment of various conditions

including back pain, headaches, pain associated with sports-related injuries, and other conditions not

associated with cancer and for which it was not approved, appropriate, or safe.

362. Actiqs initial sales counted in the tens of millions of dollars, corresponding to its

limited patient population. But by 2005, Actiq sales reached $412 million, making it Cephalons

second-highest selling drug. As a result of Cephalons deceptive, unlawful marketing, sales exceeded

$500 million by 2006.

116
FDA Approval Letter for NDA 20-747 (Nov. 4, 1998) at 5,
http://www.accessdata.fda.gov/drugsatfda_docs/appletter/1998/20747ltr.pdf (accessed May 30,
2017)
117
Actiq Drug Label, July 2011. The 1998 version does not substantively differ: Because life-
threatening hypoventilation could occur at any dose in patients not taking chronic opiates, Actiq is
contra- indicated in the management of acute or postoperative pain. This product must not be used in
opioid non-tolerant patients. (emphasis in original).

126
 b) October 1, 2006 Cephalon fraudulently marked Actiqs successor
drug, Fentora

363. Actiq was set to lose its patent protection in September 2006. To replace the revenue

stream that would be lost once generic competitors came to market, Cephalon purchased a new opioid

drug, Fentora, from Cima Labs and, in August 2005, submitted a New Drug Application (NDA) to

the FDA for approval. Like Actiq, Fentora is an extremely powerful and rapid-onset opioid. It is

administered by placing a tablet in the mouth until it disintegrates and is absorbed by the mucous

membrane that lines the inside of the mouth.

364. On September 25, 2006, the FDA approved Fentora, like Actiq, only for the treatment

of breakthrough cancer pain in cancer patients who were already tolerant to around- the-clock opioid

therapy for their underlying persistent cancer pain. Fentoras unusually strong and detailed black box

warning labelthe most serious medication warning required by the FDAmakes clear that, among

other things:

Fatal respiratory depression has occurred in patients treated with FENTORA, including
following use in opioid non-tolerant patients and improper dosing. The substitution of
FENTORA for any other fentanyl product may result in fatal overdose.

Due to the risk of respiratory depression, FENTORA is contraindicated in the

management of acute or postoperative pain including headache/migraine and in opioid
non-tolerant patients.118

365. When Cephalon launched Fentora on October 1, 2006, it picked up the playbook it had

developed for Actiq and simply substituted in Fentora. Cephalon immediately shifted 100 general pain

sales representatives from selling Actiq to selling Fentora to the very same physicians for uses that

would necessarily and predictably be off-label. Cephalons marketing of Actiq therefore primed the

market for Fentora. Cephalon had trained numerous KOLs to lead promotional programs for

118
Fentora Drug Label, February 2013, http://www.accessdata.fda.gov/drugsatfda_docs/label/
2013/021947s008lbl.pdf (accessed May 30, 2017)

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Fentora, typically including off-label uses for the drug. Cephalon billed Fentora as a major advance that

offered a significant upgrade in the treatment of breakthrough pain generallynot breakthrough

cancer pain in particularfrom Actiq. Cephalon also developed a plan in 2007 to target elderly

chronic pain patients via a multi-city tour with stops at AARP events, YMCAs, and senior living

facilities.

366. On February 12, 2007, only four months after the launch, Cephalon CEO Frank

Baldino told investors:

[W]eve been extremely pleased to retain a substantial portion, roughly 75% of the `
rapid onset opioid market. We executed our transition strategy and the results in
our pain franchise have been better than we expected. With the successful launch of
FENTORA and the progress in label expansion program, we are well positioned
to grow our pain franchise for many years to come.119

367. On May 1, 2007, just seven months after Fentoras launch, Cephalons then-Executive

Vice President for Worldwide Operations, Bob Roche, bragged to financial analysts that Fentoras

reach would exceed even Actiqs. He described the companys successful and aggressive launch of

Fentora that was persuading physicians to prescribe Fentora for ever broader uses. He identified two

major opportunitiestreating breakthrough cancer pain and:

The other opportunity of course is the prospect for FENTORA

outside of cancer pain, in indications such as breakthrough lower
back pain and breakthrough neuropathic pain. . . .
....
We believe that a huge opportunity still exists as physicians and
patients recognize FENTORA as their first choice rapid onset
opioid medication. . . . [opioids are] widely used in the treatment
of. . . non-cancer patients . . . .
....
Of all the patients taking chronic opioids, 32% of them take that
medication to treat back pain, and 30% of them are taking their
opioids to treat neuropathic pain. In contrast only 12% are taking

119
See Cephalon Q4 2006 Earnings Call Transcript, Seeking Alpha (February 12, 2007, 8:48 PM EST)
at 5, http://seekingalpha.com/article/26813-cephalon-q4-2006-earnings-call-transcript (accessed May
30, 2017)

128
 them to treat cancer pain, 12%.

We know from our own studies that breakthrough pain episodes

experienced by these non-cancer sufferers respond very well to
FENTORA. And for all these reasons, we are tremendously
excited about the significant impact FENTORA can have on
patient health and wellbeing and the exciting growth potential
that it has for Cephalon.

In summary, we have had a strong launch of FENTORA and

continue to grow the product aggressively. Today, that growth is
coming from the physicians and patient types that we have
identified through our efforts in the field over the last seven years.
In the future, with new and broader indications and a much
bigger field force presence, the opportunity that FENTORA
represents is enormous.120
c) September 2007 Reports of death and serious side effects led the
FDA to issue a public health warning for Fentora

368. On September 10, 2007, Cephalon sent letters to doctors warning of deaths and other

serious adverse events connected with the use of Fentora, indicating that [t]hese deaths occurred as

a result of improper patient selection (e.g., use in opioid non-tolerant patients), improper dosing,

and/or improper product substitution.121 The warning did not mention Cephalons deliberate role in

the improper patient selection.

369. Two weeks later, the FDA issued its own Public Health Advisory. The FDA

emphasized, once again, that Fentora should be prescribed only for approved conditions and that dose

guidelines should be carefully followed. The FDA Advisory made clear that several Fentora-related

deaths had occurred in patients who were prescribed the drug for off-label uses. The FDA Advisory

120
See Cephalon Q1 2007 Earnings Call Transcript, Seeking Alpha (May 1, 2007, 8:48 PM EST) at 23,
http://seekingalpha.com/article/34163-cephalon-q1-2007-earnings-call-transcript?page=1 (accessed
May 30, 2017)
121
Letter from Jeffrey M. Dayno, M.D., Vice President, Medical Services, Cephalon, Inc. to
Healthcare Providers (Sept. 10, 2007),
http://www.fda.gov/downloads/Safety/MedWatch/SafetyInformation/
SafetyAlertsforHumanMed icalProducts/UCM154439.pdf (accessed May 30, 2017).

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warned that Fentora should not be used for any off-label conditions, including migraines, post-

operative pain, or pain due to injury, and that it should be given only to patients who have developed

opioid tolerance. The Advisory reiterated that, because Fentora contains a much greater amount of

fentanyl than other opiate painkillers, it is not a suitable substitute for other painkillers.122

370. Notwithstanding the regulatory scrutiny, Cephalons off-label marketing continued.

Cephalons 2008 internal audit of its Sales & Marketing Compliance Programs concluded that

marketing and tactical documents, as written, may be construed to promote off-label uses. The same

report acknowledged that Cephalon lacked a process to confirm that speakers program participants

were following Cephalons written, formal policies prohibiting off-label promotion, and that non-

compliant [Cephalon Speaker Programs] may be taking place. Moreover, the report acknowledged

that Cephalons call universe may include inappropriate prescribers prescribers who had

nothing to do with cancer pain.

d) May 6, 2008 The FDA rejected Cephalons request for expanded

approval of Fentora

371. Cephalon filed a supplemental new drug application, (sNDA), asking the FDA to

approve Fentora for the treatment of non-cancer breakthrough pain. Cephalon admitted that Fentora

already had been heavily prescribed for non-cancer pain, but argued that such widespread use

demonstrated why Fentora should be approved for these wider uses. 123 Cephalons application also

conceded that [t]o date, no medication has been systematically evaluated in clinical studies or

122
FDA Public Health Advisory, Important Information for the Safe Use of Fentora (fentanyl buccal tablets)
(Sept. 26, 2007),
http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/
ucm051273.htm (accessed May 30, 2017)
123
See Fentora CII: Advisory Committee Briefing Document, U.S. FDA Anesthetic & Life Support
Drugs Advisory Comm. & Drug Safety & Risk Mgmt. Advisory Comm. (May 6, 2008),
http://www.fda.gov/ohrms/dockets/ac/08/briefing/2008-4356b2-02-Cephalon.pdf (accessed May
30, 2017)

130
approved by the FDA for the management of [breakthrough pain] in patients with chronic persistent

non-cancer-related pain. Id.

372. In response to Cephalons application, the FDA presented data showing that 95% of

all Fentora use was for treatment of non-cancer pain.124 By a vote of 17-3, the relevant Advisory

Committeea panel of outside expertsvoted against recommending approval of Cephalons sNDA

for Fentora, citing the potential harm from broader use. On September 15, 2008, the FDA denied

Cephalons application and requested, in light of Fentoras already off- label use, that Cephalon

implement and demonstrate the effectiveness of proposed enhancements to Fentoras Risk

Management Program. In December 2008, the FDA followed that request with a formal request

directing Cephalon to submit a Risk Evaluation and Mitigation Strategy for Fentora.

e) March 26, 2009 the FDAs Division of Drug Marketing,

Advertising and Communications (DDMAC) warned Cephalon
about its misleading advertising of Fentora

373. Undeterred by the rejection of its sNDA, Cephalon continued to use its general pain

sales force to promote Fentora off-label to pain specialists as an upgrade of Actiq for the treatment of

non-cancer breakthrough pain. Deceptively and especially dangerously, Cephalon also continued to

promote Fentora for use by all cancer patients suffering breakthrough cancer pain, and not only those

who were opioid tolerant.

374. On March 26, 2009, DDMAC issued a Warning Letter to Cephalon, telling Cephalon

that its promotional materials for Fentora amounted to deceptive, off-label promotion of the drug.125

124
See Yoo Jung Chang & Lauren Lee, Review of Fentora and Actiq Adverse Events from the Adverse Event
Reporting System (AERS) Database, U.S. FDA Anesthetic & Life Support Drugs Advisory Comm. &
Drug Safety & Risk Mgmt. Advisory Comm. (May 6, 2008),
http://www.fda.gov/ohrms/dockets/ac/08/slides/2008-4356s2-02-FDAcorepresentations.ppt#289,1
(accessed May 30, 2017).
125
Letter from Michael Sauers, Regulatory Review Officer, Division of Drug Marketing, Advertising

131
Specifically, the Warning Letter asserted that a sponsored link on Google and other search engines for

Fentora, which said [l]earn about treating breakthrough pain in patients with cancer,126 was improper

because it misleadingly broaden[ed] the indication for Fentora by implying that any patient with

cancer who requires treatment for breakthrough pain is a candidate for Fentora therapy . . . when this

is not the case.

375. DDMAC emphasized that Fentoras label was limited to cancer patients with

breakthrough pain who are already receiving and who are tolerant to around-the-clock opioid

therapy for their underlying persistent cancer pain. (emphasis in original). DDMAC explained

that the advertisement was especially concerning given that Fentora must not be used in opioid non-

tolerant patients because life-threatening hypoventilation and death could occur at any dose in patients

not on a chronic regimen of opioids. (Emphasis in original). DDMAC also warned Cephalon that,

based on a review of Cephalon-sponsored links for Fentora on internet search engines, the companys

advertisements were misleading because they make representations and/or suggestions about the

efficacy of Fentora, but fail to communicate any risk information associated with the use of the drug.

(emphasis in original).

f) Cephalon continues to knowingly, deceptively, and illegally promote

Fenotra for off-label uses

376. Cephalons own market research studies confirm that its Fentora promotions were not

focused on physicians who treat breakthrough cancer pain. Cephalon commissioned several market

and Communications, to Carole S. Marchione, Senior Director and Group Leader, Regulatory Affairs
(March 26, 2009),
http://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/
EnforcementActivitiesbyFDA/WarningLettersandNoticeofViolationLetterstoPharmaceuticalCompani
es/UCM166238.pdf (accessed May 30, 2017).
126
Screen shots of the sponsored link are available here: http://www.fda.gov/downloads/Drugs/
GuidanceComplianceRegulatoryInformation/EnforcementActivitiesbyFDA/WarningLettersandNotic
eofViolationLetterstoPharmaceuticalCompanies/UCM166240.pdf (accessed May 30, 2017).

132
research studies to determine whether oncologists provided an adequate market potential for

Fentora. These studies central goal was to determine whether oncologists treat breakthrough cancer

pain themselves, or whether they refer such patients to general pain specialists. The first study,

completed in 2007, reported that 90% of oncologists diagnose and treat breakthrough cancer pain

themselves, and do not refer their breakthrough cancer pain patients to pain specialists. The second

study, completed in 2009, confirmed the results of the 2007 study, this time reporting that 88% of

oncologists diagnose and treat breakthrough cancer pain themselves and rarely, if ever, refer those

patients to general pain specialists. (One reason that general pain specialists typically do not treat

oncological pain is that the presence of pain can, in itself, be an indicator of a change in the patients

underlying condition that should be monitored by the treating oncologist.)

377. Cephalon was well aware that physicians were prescribing Fentora for off-label uses.

378. Cephalon was also aware that its detailing had an impact on prescription rates.

379. In 2011, Cephalon wrote and copyrighted an article titled 2011 Special Report: An

Integrated Risk Evaluation and Risk Mitigation Strategy for Fentanyl Buccal Tablet (FENTORA)

and Oral Transmucosal Fentanyl Citrate (ACTIQ) that was published in Pain Medicine News.127 The

article promoted Cephalons drugs for off-label uses by stating that the judicious use of opioids can

facilitate effective and safe management of chronic pain and noted that Fentora has been shown to

be effective in treatment of [break through pain] associated with multiple causes of pain, not just

cancer.128

ii. Cephalons Misrepresentation of the Risks Associated with the Use of Opioids for the
Long-Term Treatment of Chronic Pain

127
http://www.pharmacytimes.com/publications/issue/2012/january2012/r514-jan-12-rems
(accessed May 30, 2017)
128
Id.

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 380. Cephalons conduct in marketing Actiq and Fentora for chronic non-cancer pain,

despite their clear (and deadly) risks and unproved benefits, was an extension, and reaped the benefits,

of Cephalons generally deceptive promotion of opioids for chronic pain.

381. There is insufficient scientific evidence to corroborate a link between chronic opioid

therapy and increased functionality. There is however, sufficient evidence to show increased risks of

overdose and addiction .129

382. Along with deploying its sales representatives, Cephalon used speakers bureaus to help

reach prescribers. The company viewed each treating physician as a vehicle to generate prescriptions

whether written by that physician directly or caused indirectly by his or her influence over other

physicians.

383. Having determined that speakers were an effective way to reach prescribers, Cephalon

set to work ensuring that its speakers would disseminate its misleading messages. Cephalon did not

disclose to speakers that, even when these tools are applied, they are unable to control for the risk of

addiction.

384. As with the other Defendants, Cephalon deployed the made-up concept of

pseudoaddiction to encourage prescribers to address addictive behavior in the worst way possible

with more opioids.

385. Working with FSMB, Cephalon also trained its speakers to turn doctors fear of

discipline on its headdoctors, who believed that they would be disciplined if their patients became

addicted to opioids, were taught instead that they would be punished if they failed to prescribe opioids

to their patients with pain. Through this messaging, Cephalon aimed to normalize the prescribing of

129
Thomas R. Frieden & Debra Houry, Reducing the Risks of Relief The CDC Opioid-Prescribing Guideline,
347 New Eng. J. Med. 1501-04 (2016).

134
opioids for chronic pain and failed to acknowledge the serious risks of long-term opioid use and its

inappropriateness as a front-line treatment for pain.

386. Finally, Cephalon also developed a guidebook called Opioid Medications and REMS: A

Patients Guide, which deceptively minimized the risks of addiction from the long- term use of opioids.

Specifically, the guidebook claimed that patients without a history of abuse or a family history of

abuse do not commonly become addicted to opioids, which is dangerously false. Cephalon

distributed the guidebook broadly, and it was available to, and intended to reach, prescribers in Shelby

County.

387. The misleading messages and materials Cephalon provided to its sales force and its

speakers were part of a broader strategy to convince prescribers to use opioids to treat their patients

pain, without complete and accurate information about the risks, benefits, and alternatives. This

deception was national in scope and included Shelby County. Cephalons nationwide messages have

reached Shelby County prescribers in a number of ways. For example, they were delivered by

Cephalons sales representatives in detailing visits and made available to County patients and

prescribers through websites and ads, including ads in prominent medical journals. They have also

been delivered to County prescribers by Cephalons paid speakers, who were required by Cephalon

policy to stay true to the companys nationwide messaging.

b. Cephalons Deceptive Third-Party Statements

388. Like the other Defendants, Cephalon also relied on third parties to disseminate its

messages through deceptive publications and presentations. By funding, developing and reviewing the

content, and distributing and facilitating the distribution of these messages, Cephalon exercised

editorial control over them. Cephalon, in some instances, used its sales force to directly distribute

certain publications by these Front Groups and KOLs, rendering those publications labeling within

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the meaning of 21 C.F.R. 1.3(a) and making Cephalon responsible for their contents. Cephalon also

deployed its KOLs as speakers for talks and CMEs to selected groups of prescribers.

389. Cephalons relationships with several such Front Groups and KOLsand the

misleading and deceptive publications and presentations those relationships generatedare described

below.

i. FSMB Responsible Opioid Prescribing

390. In 2007, for example, Cephalon sponsored and distributed through its sales

representatives FSMBs Responsible Opioid Prescribing, which was drafted by Dr. Fishman. Dr. Fishman

was frequently hired by a consulting Firm, Conrad & Associates LLC, to write pro-opioid marketing

pieces disguised as science. Dr. Fishmans work was reviewed and approved by drug company

representatives, and he felt compelled to draft pieces that he admits distorted the risks and benefits of

chronic opioid therapy in order to meet the demands of his drug company sponsors.

391. Responsible Opioid Prescribing was a signature piece of Dr. Fishmans work and contained

a number of deceptive statements. This publication claimed that, because pain had a negative impact

on a patients ability to function, relieving painalonewould reverse that effect and improve

function. However, the truth is far more complicated; functional improvements made from increased

pain relief can be offset by a number of problems, including addiction.

392. Responsible Opioid Prescribing also misrepresented the likelihood of addiction by

mischaracterizing drug-seeking behavior as pseudoaddiction. It explained that requesting drugs by

name, engaging in demanding or manipulative behavior, seeing more than one doctor to obtain

opioids, and hoarding were all signs of pseudoaddiction and are likely the effects of undertreated

pain, rather than true addiction. There is no scientific evidence to support the concept of

pseudoaddiction, and any suggestion that addictive behavior masquerades as pseudoaddiction is

false.

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 393. Cephalon spent $150,000 to purchase copies of Responsible Opioid Prescribing in bulk. It

then used its sales force to distribute these copies to 10,000 prescribers and 5,000 pharmacists

nationwide. These were available to, and intended to, reach prescribers and pharmacists in Shelby

County.

ii. APF Treatment Options: A Guide for People Living with Pain

394. Cephalon also exercised considerable control over the Front Group APF, which

published and disseminated many of the most egregious falsehoods regarding chronic opioid therapy.

Their relationship, and several of the APF publications, are described in detail below.

395. Documents indicate that Cephalon provided APF with substantial assistance in

publishing deceptive information regarding the risks associated with the use of opioids for chronic

pain. An April 3, 2008 Fentora Assessment Strategy Tactics Team Meeting presentation outlines

Cephalons strategy to prepare for a meeting at which the FDA Advisory Committee would consider

expanding the indication of Fentora to include chronic, non-cancer pain. Cephalon prepared by

reaching out to third-party organizations, KOLs, and patients to provide context and, where

appropriate, encourage related activity. First among the Front Groups listed was APF.

396. Cephalon was among the drug companies that worked with APF to educate the

Institute of Medicine of the National Academies (IOM) on issues related to chronic opioid therapy.

APF President Will Rowe circulated a document to Cephalon and other drug company personnel that

contained key message points and suggested that they [c]onsider using this document in your

communications with the members of the IOM Committee. According to Rowe, recipients should

consider this a working document which you can add to or subtract from. Rowe also advised that, if

recipients have an ally on that Committee, they should consider sharing this document with that

person.

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 397. Cephalon personnel responded enthusiastically, with Cephalons Associate Director for

Alliance Development stating her belief that the document does a good job of bringing together

many important ideas. Cephalon reviewed and directed changes to this document, with the Cephalon

Associate Director thanking Rowe for incorporating the points we had raised. The close

collaboration between Cephalon and APF on this project demonstrates their agreement to work

collaboratively to promote the use of opioids as an appropriate treatment for chronic pain.

398. Cephalons influence over APFs activities was so pervasive that APFs President, Will

Rowe, even reached out to Defendantsincluding Cephalonrather than his own staff, to identify

potential authors to answer a 2011 article critical of opioids that had been published in the Archives of

Internal Medicine.

399. Starting in 2007, Cephalon sponsored APFs Treatment Options: A Guide for People Living

with Pain.130 It is rife with misrepresentations regarding the risks, benefits, and superiority of opioids.

400. For example, Treatment Options deceptively asserts that the long-term use of opioids to

treat chronic pain could help patients function in their daily lives by stating that, when used properly,

opioids give [pain patients] a quality of life [they] deserve. There is no scientific evidence

corroborating that statement, and such statements are, in fact, false. Available data demonstrate that

patients on chronic opioid therapy are actually less likely to participate in life activities like work.

401. Treatment Options also claims that addiction is rare and is evident from patients conduct

in self-escalating their doses, seeking opioids from multiple doctors, or stealing the drugs. Treatment

Options further minimizes the risk of addiction by claiming that it can be avoided through the use of

screening tools, like opioid agreements, which can ensure [that patients] take the opioid as

prescribed. Nowhere does Treatment Options explain to patients and prescribers that neither opioid

130
https://assets.documentcloud.org/documents/277605/apf-treatmentoptions.pdf (accessed May
30, 2017)

138
agreements nor any other screening tools have been scientifically validated to decrease the risks of

addiction, and the publications assurances to the contrary are false and deceptive.

402. Treatment Options also promotes the use of opioids to treat chronic pain by painting a

misleading picture of the risks of alternate treatments, most particularly NSAIDs. Treatment Options

notes that NSAIDs can be dangerous at high doses, and attributes 10,000 to 20,000 deaths a year

annually to NSAID overdose. According to Treatment Options, NSAIDs are different from opioids

because opioids have no ceiling dose, which is beneficial since some patients need larger doses of

painkillers than they are currently prescribed. These claims misleadingly suggest that opioids are safe

even at high doses and omit important information regarding the risks of high-dose opioids.

403. Additionally, Treatment Options warns that the risks associated with NSAID use increase

if NSAIDs are taken for more than a period of months, but deceptively omits any similar warning

about the risks associated with the long-term use of opioids. This presentation paints a misleading

picture of the risks and benefits of opioid compared with alternate treatments.

404. APF distributed 17,200 copies of Treatment Options in 2007 alone. It is currently

available online and was intended to reach Shelby County prescribers and pharmacists.

iii. Key Opinion Leaders and Misleading Science

405. Cephalon also knew that its misleading messages would be more likely to be believed

by prescribers if they were corroborated by seemingly neutral scientific support.

406. Employing these tactics, Cephalon caused the term breakthrough paina term it

seeded in the medical literatureto be used in articles published by practitioners and clinicians it

supported. With funding from Cephalon, for example, Dr. Portenoy wrote an article that purported to

expand the definition of breakthrough cancer pain to non-cancer indications, vastly expanding the

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marketing potential of Cephalons Fentora. The article was published in the nationally circulated Journal

of Pain in 2006 and helped drive a surge in Fentora prescriptions.

407. The concept of breakthrough pain ultimately formed the sole basis for the central

theme of promotional messages Cephalon cited to support the approval and marketing of Actiq and

Fentora, rapid-acting opioids which begin to work very quickly but last only briefly. Neither of these

drugs had a natural place in the treatment of chronic pain before Cephalons marketing campaign

changed medical practice. A recent literature survey of articles describing non-cancer breakthrough

pain calls into question the validity of the concept, suggesting it is not a distinct pain condition but a

hypothesis to justify greater dosing of opioids. In other words, Cephalon conjured the science of

breakthrough pain in order to sell its drugs.

408. As one scholar has pointed out, references to breakthrough pain in articles published

on the MEDLINE bibliographic database spiked in 1998 and again in 2006.131 These spikes coincide

with FDAs approval of Actiq and Fentora.

iv. Misleading Continuing Medical Education

409. Cephalon developed sophisticated plans for the deployment of its KOLs, broken down

by sub-type and specialty, to reach targeted groups of prescribers through CMEs. Cephalon used the

CME programs it sponsored to deceptively portray the risks related to the use of opioids to treat

chronic non-cancer pain and promote the off-label use of Actiq and Fentora.

410. In 2007 and 2008, Cephalon sponsored three CMEs that each positioned Actiq and

Fentora as the only rapid onset opioids that would provide effective analgesia within the time period

131
Adriane Fugh-Berman, Marketing Messages in Industry-Funded CME, PharmedOut , Georgetown U.
Med. Ctr. (June 25, 2010), available at pharmedout.galacticrealms.com/Fugh
BermanPrescriptionforConflict6-25-10.pdf (accessed May 30, 2017).

140
during which breakthrough pain was at its peak intensity. Although the CMEs used only the generic

names of the drugs, the description of the active ingredient and means of administration means that a

physician attending the CME knew it referred only to Actiq or Fentora.

411. The CMEs each taught attendees that there was no sound basis for the distinction

between cancer and non-cancer breakthrough pain, and one instructed patients that Actiq and

Fentora were commonly used in non-cancer patients, thus effectively endorsing this use. Optimizing

Opioid Treatment for Breakthrough Pain, offered online by Medscape, LLC from September 28, 2007,

through December 15, 2008, was prepared by KOL Dr. Webster and M. Beth Dove. It recommends

prescribing a short-acting opioid (e.g., morphine, hydromorphone, oxycodone) when pain can be

anticipated, or a rapid-onset opioid when it cannot. The only examples of rapid-onset opioids then on

the market were oral transmucosal fentanyl citrate (i.e., Actiq) or fentanyl effervescent buccal tablet

(i.e., Fentora): Both are indicated for treatment of [breakthrough pain] in opioid-tolerant cancer

patients and are frequently prescribed to treat [breakthrough pain] in noncancer patients as well.

412. Optimizing Opioid Treatment for Breakthrough Pain not only deceptively promoted

Cephalons drugs for off-label use, but also misleadingly portrayed the risks, benefits, and superiority

of opioids for the treatment of chronic pain. For example, the CME misrepresented that Actiq and

Fentora would help patients regain functionality by advising that they improve patients quality of life

and allow for more activities when taken in conjunction with long-acting opioids. The CME also

minimized the risks associated with increased opioid doses by explaining that NSAIDs were less

effective than opioids for the treatment of breakthrough pain because of their dose limitations, without

disclosing the heightened risk of adverse events on high-dose opioids.

413. Around the same time, Dr. Webster was receiving nearly $2 million in funding from

Cephalon.

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 414. Optimizing Opioid Treatment for Breakthrough Pain was available online and was

intended to reach County prescribers.

415. Cephalon similarly used an educational grant to sponsor the CME Breakthrough Pain:

Improving Recognition and Management, which was offered online between March 31, 2008, and March 31,

2009, by Medscape, LLC. The direct result of Cephalons funding was a purportedly educational

document that echoed Cephalons marketing messages. The CME deceptively omitted Actiqs and

Fentoras tolerance limitations, cited examples of patients who experienced pain from accidents, not

from cancer, and, like Cephalons Optimizing Opioid Treatment CME, taught that Actiq and Fentora were

the only products on the market that would take effect before the breakthrough pain episode subsided.

This CME was available online and was intended to reach County prescribers.

416. Lastly, KOL Dr. Fine authored a CME, sponsored by Cephalon, titled Opioid-Based

Management of Persistent and Breakthrough Pain, with KOLs Dr. Christine A. Miaskowski and Michael J.

Brennan, M.D. Cephalon paid to have this CME published in a supplement of Pain Medicine News in

2009. 132 It instructed prescribers that clinically, broad classification of pain syndromes as either

cancer- or noncancer-related has limited utility, and recommended dispensing rapid onset opioids

for episodes that occur spontaneously or unpredictably, including oral transmucosal fentanyl, i.e.,

Actiq, and fentanyl buccal tablet, i.e., Fentora, including in patients with chronic non-cancer pain. Dr.

Miaskowski disclosed in 2009, in connection with the APS/AAPM Opioid Treatment Guidelines, that

she served on Cephalons speakers bureau. 133 Dr. Fine also received funding from Cephalon for

consulting services.

132
https://www.yumpu.com/en/document/view/11409251/opioid-based-management-of-
persistent-and-breakthrough-pain (accessed May 30, 2017).
133
14 of 21 panel members who drafted the AAPM/APS Guidelines received support from
Janssen, Cephalon, Endo, and Purdue.

142
 417. Opioid-Based Management of Persistent and Breakthrough Pain was available to and was

intended to reach County prescribers.

418. Cephalons control over the content of these CMEs is apparent based on its advance

knowledge of their content. A December 2005 Cephalon launch plan set forth key supporting

messages to position Fentora for its product launch. Among them was the proposition that 15-

minute onset of action addresses the unpredictable urgency of [breakthrough pain]. Years later, the

same marketing messages reappeared in the Cephalon-sponsored CMEs described above. Echoing the

Cephalon launch plan, Optimizing Opioid Treatment for Breakthrough Pain stated that [t]he

unpredictability of [breakthrough pain] will strongly influence the choice of treatment and that

Fentora delivers an onset of analgesia that is similar to [Actiq] at 15 minutes. Similarly, Opioid-

Based Management of Persistent and Breakthrough Pain defined breakthrough pain as

unpredictable, over a table describing both cancer and non-cancer breakthrough pain.

419. Cephalon tracked the effectiveness of its deceptive marketing through third parties,

demonstrating that Cephalon not only planned for, but depended upon, their activities as a key

element of its marketing strategy. These programs were available to prescribers in Shelby County and,

based on the uniform and nationwide character of Cephalons marketing, featured the same deceptive

messages described above.

c. Cephalons Deceptive Third-Party Statements to County Prescribers and Patients

420. Cephalon used various measures to disseminate its deceptive statements regarding the

risks of off-label use of Actiq and Fentora and the risks, benefits, and superiority of opioids to County

patients and prescribers.

421. Cephalons speakers regularly held talks for County prescribers. These talks followed

the same deceptive talking points covered in Cephalons speakers training.

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 422. Cephalon also targeted County prescribers through the use of its sales force.

423. Given that Cephalons own studies demonstrated that the overwhelming majority of

oncologists diagnose and treat breakthrough cancer pain themselves, Cephalon knew the only purpose

of representatives meeting with these prescribers was to promote off-label use. Based on the uniform

and nationwide character of Cephalons marketing, Cephalons deceptive messages would have been

disseminated to County prescribers by Cephalons sales representatives during these events.

424. Sales representatives, and the misrepresentations on which they were trained, drove

significant Fentora sales.

3. Endo

425. Endo promoted its opioids through the full array of marketing channels. The company

deployed its sales representatives, paid physician speakers, journal supplements, and advertising in

support of its branded opioids, principally Opana and Opana ER. Misleading claims about the

purportedly lower abuse potential of Opana ER featured prominently in this campaign. Endo also

made many other deceptive statements and omissions. These included deceptive messages about

functional improvement, addiction risk, pseudoaddiction, addiction screening tools, and the safety of

alternatives to opioids.

426. At the same time, Endo also relied on third-party partners to promote the safety,

efficacy, and superiority of opioids generally, through a combination of CMEs, websites, patient

education pamphlets, and other publications. These materials echoed the misrepresentations described

above, and also made deceptive statements about withdrawal symptoms and the safety of opioids at

higher doses.

427. Through the highly coordinated and uniform nature of Endos marketing, Endo

conveyed these deceptive messages to County prescribers. The materials that Endo generated in

collaboration with third-parties also were distributed or made available in Shelby County. Endo

144
distributed these messages, or facilitated their distribution, in Shelby County with the intent that

County prescribers and/or consumers would rely on them in choosing to use opioids to treat chronic

pain.

a. Endos Deceptive Direct Marketing

428. Like the other Defendants, Endo used deceptive direct marketing to increase the sales

of its dangerous opioids. As set forth below, Endo conveyed these deceptive messages in training of its

sales force and recruited speakers, who in turn conveyed them to physicians; in a misleading journal

supplement; and in unbranded advertising.

i. Endos Sales Force and Deceptive Sales Training

429. Endos promotion of Opana ER relied heavily on in-person marketing, including to

County prescribers. Endo had an aggressive detailing program. In the first quarter of 2010 alone, sales

representatives made nearly 72,000 visits to prescribers nationwide to detail Opana ER. Between 2007

and 2013, Endo spent between $3 million and $10 million each quarter to promote opioids through its

sales force.

430. Endos sales representatives, like those of the other Defendants, targeted physicians to

deliver sales messages that were developed centrally and deployed uniformly across the country. These

sales representatives were critical in transmitting Endos marketing strategies and talking points to

individual prescribers.

431. Endo specifically directed its sales force to target physicians who would prescribe its

drugs to treat chronic pain. For example, an Opana Brand Tactical Plan dated August, 2007 aimed to

increase Opana ER business from [the Primary Care Physician] community more than 45% by the

end of that year. Indeed, Endo sought to develop strategies that would be most persuasive to primary

care doctorsstrategies that sought to influence the prescribing behavior of primary care physicians

145
through the use of subject matter experts. A February 2011 Final Report on Opana ER Growth

Trends, for example, predicted that Endos planned [u]se of Pain Specialists as local thought leaders

should affect increased primary care adoption.

432. Endo trained its sales force to make a number of misrepresentations to physicians

nationwide, including to physicians in Shelby County. Endos sales representatives were trained to

represent to these prescribers that Opana ER would help patients regain function they had lost to

chronic pain; that Endo opioids had a lower potential for abuse because they were designed to be

crush resistant, despite the fact that clinical significance of INTAC Technology or its impact on

abuse/misuse ha[d] not been established for Opana ER; and that drug seeking behavior was a sign of

undertreated pain rather than addiction.

433. Endo knew that its marketing reached physicians repeatedly because it tracked their

exposure. Internal Endo documents dated August 23, 2006 demonstrate that the following percentages

of physicians would view an Endo journal insert (or paid supplement) at least 3 times in an 8 month

period: 86% of neurologists; 86% of rheumatologists; 85% of oncologists; 85% of anesthesiologists;

70% of targeted primary care physicians; and 76% of OB/GYNs.

434. Endo was not only able to reach physicians through its marketing, but also

successfully impart its marketing messages. The company found that its promotional materials

tripled prescribers ability to recall the sales message and doubled their willingness to prescribe

Opana ER in the future. This was true of marketing that contained deceptions.

435. For example, according to internal Endo documents, up to 10% of physicians it

detailed were able to recall, without assistance, the message that Opana ER had Minimal/less

abuse/misuse potential than other drugs. The Endo message that prescribers retained was a plain

misrepresentation: that use of Opana ER was unlikely to lead to abuse and addiction. Although

Opana ER always has been classified under Schedule II as a drug with a high potential for abuse,

146
the largest single perceived advantage of Opana ER, according to a survey of 187 physicians who

reported familiarity with the drug, was perceived low abuse potential, cited by 15% of doctors as an

advantage. Low abuse potential was among the deceptive messages that County prescribers received,

and retained, from Endo sales representatives.

436. Endos own internal documents acknowledged the misleading nature of these

statements, conceding that Opana ER has an abuse liability similar to other opioid analgesics as

stated in the [FDA-mandated] box warning. A September 2012 Opana ER Business Plan similarly

stated that Endo needed a significant investment in clinical data to support comparative

effectiveness, scientific exchange, benefits and unmet need, while citing lack of head-to-head data

as a barrier to greater share acquisition.

437. Nevertheless, Endo knew that its marketing was extremely effective in turning

physicians into prescribers. Nationally, the physicians Endo targeted for in-person marketing

represented approximately 84% of all prescribers of Opana ER in the first quarter of 2010.

Endo also observed that the prescribers its sales representatives visited wrote nearly three times

as many prescriptions per month for Opana ER as those physicians who were not targeted for

Endos marketing7.4 prescriptions per month versus 2.5. The most heavily targeted

prescribers wrote nearly 30 prescriptions per month. Internal Endo documents from May 2008

indicate that Endo expected that each of its sales representatives would generate 19.6

prescriptions per week by the end of 2008. As summarized by a February 2011 report on

Opana ER growth trends, Endos [a]ggressive detailing [is] having an impact.

438. More broadly, Endos sales trainings and marketing plans demonstrate that its

sales force was trained to provide prescribers with misleading information regarding the risks

of opioids when used to treat chronic pain. Foremost among these messages were misleading

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claims that the risks of addiction, diversion, and abuse associated with opioidsand Endos

products in particularwere low, and lower than other opioids.

a) Endos Sales Force Deceptively Minimized the Risks of Addiction

Associated with Chronic Opioid Therapy.

439. By way of illustration, Endos Opana ER INTAC Technology Extended-Release Sell

Sheet Implementation Guide, which instructs Endo sales personnel how to effectively support key

messages related to the marketing of Opana ER, states that it is an approved message for sales

representatives to stress that Opana ER was designed to be crush resistant, even though this

internal document conceded that the clinical significance of INTAC Technology or its impact on

abuse/misuse has not been established for Opana ER.

440. Other Endo documents acknowledged the limitations on Opana ERs INTAC

technology, conceding that while Opana ER may be resistant to pulverization, it can still be

ground and cut into small pieces by those looking to abuse the drug.

441. Endos claims about the crush-resistant design of Opana ER also made their way to

the companys press releases. A January 2013 article in Pain Medicine News, based in part on an Endo

press release, described Opana ER as crush-resistant. This article was posted on the Pain Medicine

News website, which was accessible to County patients and prescribers.

442. The only reason to promote the crush resistance of Opana ER was to persuade

doctors that there was less risk of abuse, misuse, and diversion of the drug. The idea that Opana ER

was less addictive than other drugs was the precise message that County prescribers took from

Endos marketing.

443. On May 10, 2013, the FDA warned Endo that there was no evidence that Opana ERs

design would provide a reduction in oral, intranasal, or intravenous abuse and that the post-

marketing data Endo had submitted to the FDA are insufficient to support any conclusion about

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 the overall or route-specific rates of abuse. Even though it was rebuked by the FDA, Endo

continued to market Opana ER as having been designed to be crush resistant, knowing that this

would (falsely) imply that Opana actually was crush resistant and that this crush-resistant quality

would make Opana ER less likely to be abused.

444. Endos sales training and the promotional materials distributed by its sales

representatives also minimized the risk of addiction. Endo also circulated education materials that

minimized the risk of addiction. For example, Endo circulated an education pamphlet with the Endo

logo titled Living with Someone with Chronic Pain, which implied, to persons providing care to

chronic pain patients, that addiction was not a substantial concern by stating that [m]ost health care

providers who treat people with pain agree that most people do not develop an addiction problem.

This pamphlet was downloadable from Endos website and accessible to County prescribers.

445. Endos sales training also misrepresented the risks of addiction associated with Endos

products by implying that Opanas prolonged absorption would make it less likely to lead to abuse.

For example, a presentation titled Deliver the Difference for the Opana Brand in POA II sets out

that one of the [k]ey [m]essages for the Endo sales force was that Opana ER provides [s]table,

steady-state plasma levels for true 12-hour dosing that lasts. Endos sales representatives used this

messaging to imply to County prescribers that Opana ER provided steady state pain relief, making

Opana less likely to incite euphoria in patients and less likely to lead to addiction.

446. Endo further instructed its sales force to promote the misleading concept of

pseudoaddiction,i.e., that drug-seeking behavior was not cause for alarm, but merely a

manifestation of undertreated pain. In a sales training document titled Understanding the Primary

Care MD and their use of Opioids, Endo noted that the biggest concerns among primary care

physicians were prescription drug abuse (84.2%), addiction (74.9%), adverse effects (68%), tolerance

(60.7%), and medication interaction (32%). In response to these concerns, Endo instructed its sales

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representatives to ask whether their customers were confus[ing] pseudo-addiction with drug-

seekers and how confident they were that their health care providers know these differences

(Tolerance, Dependence, Addiction, Pseudo- Addiction . . .).

b) Endos Sales Force Deceptively Implied that Chronic Opioid

Therapy Would Improve Patients Ability to Function.

447. In addition to their deceptive messages regarding addiction, Endos promotional

materials and sales trainings also misleadingly claimed that patients using opioids for the long- term

treatment of chronic pain would experience improvements in their daily function. In reality, long-

term opioid use has not been shown to, and does not, improve patients function, and, in fact, is

often accompanied by serious side effects that degrade function. Endos own internal documents

acknowledged that claims about improved quality of life were unsubstantiated off label claims.

448. Nevertheless, Endo distributed product advertisements that suggested that using

Opana ER to treat chronic pain would allow patients to perform demanding tasks like work as a

chef. One such advertisement states prominently on the front: Janice is a 46-year-old chef with

chronic low back pain. She needs a treatment option with true 12-hour dosing. The advertisement

does not mention the moderate to severe pain qualification in Opana ERs indication, except in

the fine print. These advertisements were mailed to prescribers and distributed by Endos sales force

in detailing visits, which would have included Endo representatives visits to prescribers.

449. In a 2007 sales tool that was intended to be shown by Endo sales personnel to

physicians during their detailing visits, Endo highlighted a hypothetical patient named Bill, a 40-

year-old construction worker who was reported to suffer from chronic low back pain. According to

the sales tool, Opana ER will make it more likely that Bill can return to work and support his family.

450. Similarly, training materials for sales representatives from March 2009 ask whether it is

true or false that [t]he side effects of opioids prevent a person from functioning and can cause

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 more suffering than the pain itself. The materials indicate that this is [f]alse because [t]he overall

effect of treatment with opioids is very favorable in most cases.

451. A sales training video dated March 8, 2012 that Endo produced and used to train its

sales force makes the same types of claims. A patient named Jeffery explains in the video that he

suffers from chronic pain and that chronic pain [ . . .] reduces your functional level. Jeffery claims

that after taking Opana ER, he can go out and do things like attend his sons basketball game and

[t]heres no substitute for that. This video was shown to Endos sales force, which adopted its

misleading messaging in its nationwide sales approach, including the approach it used in Shelby

County.

452. Claims of improved functionality were central to Endos marketing efforts for years. A

2012 Endo Business Plan lists ways to position Opana ER, and among them is the claim that Opana

ER will help patients [m]aintain[] normal functionality, sleep, [and] work/life/performance

productivity and have a positive [e]ffect on social relationships. Indeed, that business plan describes

the Opana ER Vision as [t]o make the Opana franchise (Opana ER, Opana, Opana Injection) the

choice that maximizes improvement in functionality and freedom from the burden of moderate-to-

severe pain.

c) Endos Sales Force Deceptively presented the Risks and Benefits of

Opioids to Make Them Appear Safer Than Other Analgesics

453. Endo further misled patients and prescribers by downplaying the risks of opioids in

comparison to other pain relievers. For example, in Shelby County and elsewhere, Endo distributed a

presentation titled Case Challenges in Pain Management: Opioid Therapy for Chronic Pain. This study held out

as a representative example one patient who had taken NSAIDs for more than eight years and, as a

result, developed a massive upper gastrointestinal bleed. The presentation recommended treating

this patient with opioids instead. By focusing on the adverse side effects of NSAIDs, while omitting

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discussion of serious side effects associated with opioids, this presentation misleadingly portrayed the

comparative risks and benefits of these drugs.

454. Endo distributed Case Challenges in Pain Management: Opioid Therapy for Chronic Pain to

116,000 prescribers in 2007, including primary care physicians.

ii. Endos Speakers Bureau Programs Deceptively Minimized the Risks of Addiction
Associated with Chronic Opioid Therapy

455. In addition to its sales representatives visits to doctors, Endo also used deceptive

science and speaker programs to spread its deceptive messages.

456. Endo leaned heavily on its speakers bureau programs. In 2008 alone, Endo spent

nearly $4 million to promote up to 1,000 speakers programs around the country. Endo contracted

with a medical communications firm to operate its speakers bureau program, planning to hold a total

of 500 fee-for-service . . . peer-to-peer promotional programs for Opana ER in just the second

half of 2011, including dinners, lunches and breakfasts. These programs were attended by sales

representatives, revealing their true purpose as marketing, rather than educational, events.

457. Endos internal reporting stated that the return on investment turned positive 8-12

weeks after such programs. Endo measured that return on investment in numbers of prescriptions

written by physicians who attended the events. One internal Endo document concluded: [w]e

looked at the data for [the] 2011 program and the results were absolutely clear: physicians who came

into our speaker programs wrote more prescriptions for Opana ER after attending than they had

before they participated. You cant argue with results like that.

458. These speakers bureau presentations included the very same misrepresentations Endo

disseminated through its sales representatives. A 2012 speaker slide deck for Opana ER on which

Endos recruited speakers were trained and to which they were required to adhere to in their

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 presentationsmisrepresented that the drug had low abuse potential, in addition to suggesting that

as many as one-quarter of the adult population could be candidates for opioid therapy.

459. In addition, a 2013 training module directed speakers to instruct prescribers that

OPANA ER with INTAC is the only oxymorphone designed to be crush resistant and advised

that [t]he only way for your patients to receive oxymorphone ER in a formulation designed to be

crush resistant is to prescribe OPANA ER with INTAC. This was a key point in distinguishing

Opana ER from competitor drugs. Although Endo mentioned that generic versions of

oxymorphone were available, it instructed speakers to stress that [t]he generics are not designed to

be crush resistant. This was particularly deceptive given that Opana ER was not actually crush-

resistant.

460. In 2009, Endo wrote a talk titled The Role of Opana ER in the Management of Chronic Pain.

The talk included a slide titled Use of Opioids is Recommended for Moderate to Severe Chronic

Noncancer Pain, which cited the AAPM/APS Guidelinesand their accompanying misstatements

regarding the likelihood of addiction (by claiming that addiction risks were manageable regardless of

patients past abuse histories) while omitting their disclaimer regarding the lack of supporting

evidence in favor of that position. This dangerously misrepresented to doctors the force and utility

of the 2009 Guidelines.

461. The misleading messages and materials Endo provided to its sales force and its

speakers were part of a broader strategy to convince prescribers to use opioids to treat their patients

pain, irrespective of the risks, benefits, and alternatives. This deception was national in scope and

included Shelby County. Endos nationwide messages would have reached County prescribers in a

number of ways. For example, they were carried into Shelby County by Endos sales representatives

during detailing visits as well as made available to County patients and prescribers through websites

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and ads. They also have been delivered to County prescribers by Endos paid speakers, who were

required by Endo policy and by FDA regulations to stay true to Endos nationwide messaging.

iii. Endos Misleading Journal Supplement

462. In 2007, Endo commissioned the writing, and paid for the publishing of a supplement

available for CME credit in the Journal of Family Practice called Pain Management Dilemmas in

Primary Care: Use of Opioids, and it deceptively minimized the risk of addiction by emphasizing the

effectiveness of screening tools. Specifically, it recommended screening patients using tools like the

Opioid Risk Tool or the Screener and Opioid Assessment for Patients with Pain. It also falsely

claimed that, through the use of tools like toxicology screens, pill counts, and a maximally

structured approach, even patients at high risk of addiction could safely receive chronic opioid

therapy. Endo distributed 96,000 copies of this CME nationwide, and it was available to, and was

intended to, reach County prescribers.

iv. Endos Deceptive Unbranded Advertising

463. Endo also used unbranded advertisements to advance its goals. By electing to focus

on unbranded marketing, Endo was able to make claims about the benefits of its opioids that the

FDA would never allow in its branded materials. The chart below compares an Endo unbranded

statement with one of Endos FDA-regulated, branded statements:

Living with Someone Opana ER Advertisement

with Chronic Pain (2011/2012/2013) (Branded)
(2009)(Unbranded)

Patient education material created by Endo Endo advertisement

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 [C]ontains oxymorphone, an opioid agonist
and Schedule II controlled substance with an
Most health care providers who treat people abuse liability similar to other opioid
with pain agree that most people do not agonists, legal or illicit.
develop an addiction problem.
All patients treated with opioids require
careful monitoring for signs of abuse and
addiction, since use of opioid analgesic
products carries the risk of addiction
even under appropriate medical use.

b. Endos Deceptive Third-Party Statements

464. Endos efforts were not limited to directly making misrepresentations through its

marketing materials, its speakers, and its sales force. Endo believed that support for patient advocacy

and professional organizations would reinforce Endos position as the pain management

company.

465. Prior to, but in contemplation of, the 2006 launch of Opana ER, Endo developed a

Public Stakeholder Strategy. Endo identified tier one advocates to assist in promoting the

approval and acceptance of its new extended release opioid. Endo also intended to enlist the support

of organizations that would be favorable to schedule II opioids from a sales perspective and that

engaged in, or had the potential to advocate for, public policy. Endo sought to develop its

relationships with these organizations through its funding. In 2008, Endo spent $1 million per year

to attend conventions of these pro-opioid medical societies, including meetings of AAPM, APS, and

the American Society of Pain Management Nursing (ASPMN).

466. APFs ability to influence professional societies and other third parties is demonstrated

by its approach to responding to a citizens petition filed with the FDA by the Physicians for

Responsible Opioid Prescribing (the PROP Petition). The PROP petition, filed by a group of

prescribers who had become concerned with the rampant prescribing of opioids to treat chronic

155
pain, asked the FDA to require dose and duration limitations on opioid use and to change the

wording of the approved indication of various long-acting opioids to focus on the severity of the

pain they are intended to treat.

467. The PROP Petition set off a flurry of activity at Endo. It was understood that Endo

would respond to the petition but Endo personnel wondered [s]hould we [ . . . ] consider filing a

direct response to this [citizens petition] or do you think we are better served by working through

our professional society affiliations? One Endo employee responded: My sense is the societies are

better placed to make a medical case than Endo. Endos Director of Medical Science agreed that a

reply from an external source would be most impactful. These communications reflected Endos

absolute confidence that the professional societies would support its position.

i. APF

468. One of the societies with which Endo worked most closely was APF. Endo provided

substantial assistance to, and exercised editorial control, over the deceptive and misleading messages

that APF conveyed through its National Initiative on Pain Control (NIPC). Endo was one of

APFs biggest financial supporters, providing more than half of the $10 million APF received from

opioid manufacturers during its lifespan. Endo spent $1.1 million on the NIPC program in 2008

alone, funding earmarked in part, for the creation of CME materials that were intended to be used

repeatedly.

469. Endos influence over APFs activities was so pervasive that APF President Will Rowe

reached out to Defendantsincluding Endorather than his own staff, to identify potential

authors to answer a 2011 article critical of opioids that had been published in the Archives of

Internal Medicine. Personnel from Defendants Purdue, Endo, Janssen, and Cephalon worked with

Rowe to formulate APFs response which was ultimately published.

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 470. Documents also indicate that Endo personnel were given advance notice of the

materials APF planned to publish on its website and provided an opportunity to comment on the

content of those materials before they were published. For example, in early July of 2009, APFs

Director of Strategic Development wrote to Endo personnel to give them advance notice of content

that APF planned to be putting . . . up on the website but its not up yet. The Endo employee

assured the sender that she w[ould] not forward it to anyone at all and promised that she would

double delete it from [her] inbox. In response, APFs Director of Strategic Development replied

internally with only four words: And wheres the money?

471. At no time was Endos relationship with APF closer than during its sponsorship of

the NIPC. Before being taken over by APF, the NIPC was sponsored by Professional Postgraduate

Services which the Accreditation Council for Continuing Medical Education determined to be a

commercial interest and could no longer serve as a sponsor. In response, Endo reached out to

APF. An August 2009 document titled A Proposal for the American Pain Foundation to Assume

Sponsorship of the National Initiative on Pain Control, pointed out that [f]or the past 9 years, the

NIPC has been supported by unrestricted annual grants from Endo Pharmaceuticals, Inc.

According to this document, APFs sponsorship of the NIPC [o]ffers the APF a likely opportunity

to generate new revenue, as Endo has earmarked substantial funding: $1.2 million in net revenue for

2010 to continue the NIPC. Further, sponsorship of the APF would [p]rovide[] numerous

synergies to disseminate patient education materials, including [h]andouts to attendees at all live

events to encourage physicians to drive their patients to a trusted source for pain educationthe

APF website.

472. A September 14, 2009 presentation to APFs board contained a materially similar

discussion of NIPC sponsorship, emphasizing the financial benefit to APF from assuming the role

of administering NIPC. The proposal offer[ed] a solution to continue the development and

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implementation of the NIPC initiative as non-certified . . . yet independent education to physicians

and healthcare professionals in the primary care setting, while providing the APF with a dependable,

ongoing source of grant revenue. A number of benefits related to NIPC sponsorship were listed,

but chief among them was a likely opportunity [for APF] to generate new revenue, as Endo has

earmarked substantial funding: $1.2 million in net revenue for 2010 to continue the NIPC.

473. Internal Endo scheduling documents indicate that NIPC module curriculum

development, web posting, and live regional interactive workshops were Endo promotional tasks in

2010. Endo emails indicate that Endo personnel reviewed the content created by NIPC and

provided feedback.

474. Behind the scenes, Endo exercised substantial control over NIPCs work. Endo

exerted its control over NIPC by funding NIPC and APF projects; developing, specifying, and

reviewing content; and taking a substantial role in the distribution of NIPC and APF materials,

which in effect determined which messages were actually delivered to prescribers and consumers.

As described below, Endo projected that it would be able to reach tens of thousands of prescribers

nationwide through the distribution of NIPC materials.

475. From 2007 until at least 2011, Endo also meticulously tracked the distribution of

NIPC materials, demonstrating Endos commercial interest in, and access to, NIPCs reach. Endo

knew exactly how many participants viewed NIPC webinars and workshops and visited its website,

Painknowledge.com. Endo not only knew how many people viewed NIPCs content, but what their

backgrounds were (e.g., primary care physicians or neurologists). Endos access to and detailed

understanding of the composition of the audience at these events demonstrates how deeply Endo

was involved in NIPCs activities. Moreover, Endo tracked the activities of NIPCostensibly a

third partyjust as it tracked its own commercial activity.

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 476. Endo worked diligently to ensure that the NIPC materials it helped to develop would

have the broadest possible distribution. Endos 2008 to 2012 Opana Brand Tactical Plan indicates

that it sought to reach 1,000 prescribers in 2008 through live NIPC events, and also to [l]everage

live programs via enduring materials and web posting. Endo also planned to disseminate NIPCs

work by distributing two accredited newsletters to 60,000 doctors nationwide for continuing

education credit and by sponsoring a series of 18 NIPC regional case-based interactive workshops.

Endo had earmarked more than one million dollars for NIPC activities in 2008 alone.

477. In short, NIPC was a key piece of Endos marketing strategy. Indeed, internal APF

emails question whether it was worthwhile for APF to continue operating NIPC given that NIPCs

work was producing far more financial benefits for Endo than for APF. Specifically, after Endo

approved a $244,337.40 grant request to APF to fund a series of NIPC eNewsletters, APF personnel

viewed it as [g]reat news, but cautioned that the more I think about this whole thing, [Endos]

making a lot of money on this with still pretty slender margins on [APFs] end. APFs commitment to

NIPCs educational mission did not figure at all in APFs consideration of the value of its work, nor

was Endos motive or benefit in doubt.

a) Misleading Medical Education

478. NIPC distributed a series of eNewsletter CMEs focused on key topic[s] surrounding

the use of opioid therapy sponsored by Endo. These newsletters were edited by KOL Dr. Fine and

listed several industry-backed KOLs, including Dr. Webster, as individual authors. Endo estimated

that roughly 60,000 prescribers viewed each one. These CMEs were available to, and would have

been accessed by, County prescribers. Before-and-after surveys, summarized in the chart below,

showed that prescriber comfort with prescribing opioids ranged from 27% to 62% before exposure

to the CME, and from 76% to 92% afterwards:

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 479. Endo documents made it clear that the persuasive power of NIPC speakers was

directly proportional to their perceived objectivity. Accordingly, Endo personnel directed that, when

giving Endo-sponsored talks, NIPC faculty would not appear to be Endo Speakers. Nevertheless,

the two parties understood that Endo and NIPC shared a common mission to educate physicians

and working through the APF . . . [wa]s a great way to work out . . .problems that could have been

there without the APFs participation and support.

480. The materials made available on and through NIPC included misrepresentations. For

example, Endo worked with NIPC to sponsor a series of CMEs titled Persistent Pain in the Older Patient

and Persistent Pain in the Older Adult. These CMEs misrepresented the prevalence of addiction by stating

that opioids have possibly less potential for abuse in elderly patients than in younger patients, even

though there is no evidence to support such an assertion. Moreover, whereas withdrawal symptoms

are always a factor in discontinuing long-term opioid therapy, Persistent Pain in the Older Adult also

misleadingly indicated that such symptoms can be avoided entirely by tapering the patients does by

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10-20% per day for ten days. Persistent Pain in the Older Patient, for its part, made misleading claims that

opioid therapy has been shown to reduce pain and improve depressive symptoms and cognitive

functioning. NIPC webcast these CMEs from its own website, where they were available to, and were

intended to reach, County prescribers.

b) Painknowledge.com

481. Working with NIPC enabled Endo to make a number of misleading statements

through the NIPCs website, Painknowledge.com. Endo tracked visitors to PainKnowledge.com and used

Painknowledge.com to broadcast notifications about additional NIPC programming that Endo helped

to create.

482. APF made a grant request to Endo to create an online opioid tool-kit for NIPC and

to promote NIPCs website, Painknowledge.com. In so doing, APF made clear that it planned to

disseminate Defendants misleading messaging. The grant request expressly indicated APFs intent to

make misleading claims about functionality, noting: Some of these people [in chronic pain] may be

potential candidates for opioid analgesics, which can improve pain, function, and quality of life.

Endo provided $747,517 to fund the project.

483. True to APFs word, Painknowledge.com misrepresented that opioid therapy for chronic

pain would lead to improvements in patients ability to function. Specifically, in 2009 the website

instructed patients and prescribers that, with opioids, a patients level of function should improve

and that patients may find [they] are now able to participate in activities of daily living, such as work

and hobbies, that [they] were not able to enjoy when [their] pain was worse.

484. Painknowledge.com also deceptively minimized the risk of addiction by claiming that

[p]eople who take opioids as prescribed usually do not become addicted. Painknowledge.com did not

stop there. It deceptively portrayed opioids as safe at high doses and also misleadingly omitted

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serious risks, including the risks of addiction and death, from its description of the risks associated

with the use of opioids to treat chronic pain.

485. Endo was the sole funder of Painknowledge.com, and it continued to provide that

funding despite being aware of the websites misleading contents.

c) Exit Wounds

486. Finally, Endo also sponsored APFs publication and distribution of Exit Wounds, a

publication aimed at veterans that also contained a number of misleading statements about the risks,

benefits, and superiority of opioids to treat chronic pain. Exit Wounds was drafted by Derek

Mcginnis. Derek Mcginnis was frequently hired by a consulting Firm, Conrad & Associates LLC, to

write pro-opioid marketing pieces disguised as science. Derek Mcginniss work was reviewed and

approved by drug company representatives, and he felt compelled to draft pieces that he admits

distorted the risks and benefits of chronic opioid therapy in order to meet the demands of his drug

company sponsors.

487. Exit Wounds is a textbook example of Derek Mcginniss authorship on drug

companies behalf. The book misrepresented the functional benefits of opioids by stating that opioid

medications increase your level of functioning (emphasis in original).

488. Exit Wounds also misrepresented that the risk of addiction associated with the use of

opioids to treat chronic pain was low. It claimed that [l]ong experience with opioids shows that

people who are not predisposed to addiction are very unlikely to become addicted to opioid pain

medications.

489. Finally, Exit Wounds misrepresented the safety profile of using opioids to treat chronic

pain by omitting key risks associated with their use. Specifically, it omitted warnings of the risk of

interactions between opioids and benzodiazepinesa warning sufficiently important to be included

on Endos FDA-required labels. Exit Wounds also contained a lengthy discussion of the dangers of

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using alcohol to treat chronic pain but did not disclose dangers of mixing alcohol and opioidsa

particular risk for veterans.

490. As outlined above, Endo exercised dominance over APF and the projects it undertook

in an effort to promote the use of opioids to treat chronic pain. In addition, as outlined above,

Derek Mcginniss work was being reviewed and approved by drug company representatives,

motivating him to draft pro-opioid propaganda masquerading as science. Combined, these factors

gave Endo considerable influence over the work of Derek Mcginnis and over APF. Further, by

paying to distribute Exit Wounds, Endo endorsed and approved its contents.

ii. Other Front Groups: FSMB, AAPM, and AGS

491. In addition to its involvement with APF, Endo worked closely with other third-party

Front Groups and KOLs to disseminate deceptive messages regarding the risks, benefits, and

superiority of opioids for the treatment of chronic pain. As with certain APF publications, Endo in

some instances used its sales force to directly distribute certain publications by these Front Groups

and KOLs, making those publications labeling within the meaning of 21 C.F.R. 1.3(a).

492. In 2007, Endo sponsored FSMBs Responsible Opioid Prescribing, which in various ways

deceptively portrayed the risks, benefits, and superiority of opioids to treat chronic pain. Responsible

Opioid Prescribing was drafted by Dr. Fishman.

493. Endo spent $246,620 to help FSMB distribute Responsible Opioid Prescribing. Endo

approved this book for distribution by its sales force. Based on the uniform and nationwide

character of Endos marketing campaign, and the fact that Endo purchased these copies specifically

to distribute them, these copies were distributed to physicians nationwide, including physicians in

Shelby County.

494. In December 2009, Endo also contracted with AGS to create a CME to promote the

2009 guidelines titled the Pharmacological Management of Persistent Pain in Older Persons with a $44,850

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 donation. These guidelines misleadingly claimed that the risks [of addiction] are exceedingly low in

older patients with no current or past history of substance abuse, as the study supporting this

assertion did not analyze addiction rates by age. They also stated, falsely, that [a]ll patients with

moderate to severe pain . . . should be considered for opioid therapy (low quality of evidence, strong

recommendation) when in reality, opioid therapy was only an appropriate treatment for a subset of

those patients, as recognized by Endos FDA-mandated labels.

495. AGSs grant request to Endo made explicit reference to the CME that Endo was

funding. Endo thus knew full well what content it was paying to distribute, and was in a position to

evaluate that content to ensure it was accurate, substantiated, and balanced before deciding whether

or not to invest in it. After having sponsored the AGS CME, Endos internal documents indicate

that Endos pharmaceutical sales representatives discussed the AGS guidelines with doctors during

individual sales visits.

496. Endo also worked with AAPM, which it viewed internally as Industry Friendly, with

Endo advisors and speakers among its active members. Endo attended AAPM conferences, funded

its CMEs, and distributed its publications.

497. A talk written by Endo in 2009 and approved by Endos Medical Affairs Review

Committee,134 titled The Role of Opana ER in the Management of Chronic Pain, includes a slide titled Use of

Opioids is Recommended for Moderate to Severe Chronic Noncancer Pain. That slide cites the AAPM/APS

Guidelines, which contain a number of misstatements and omits their disclaimer regarding the lack of

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Although they were given slightly different names by each Defendant, each Defendant employed a
committee that could review and approve materials for distribution. These committees included
representatives from all relevant departments within Defendants organizations, including the legal,
compliance, medical affairs, and marketing departments. The task of these review committees was to
scrutinize the marketing materials Defendants planned to distribute and to ensure that those materials
were scientifically accurate and legally sound. Tellingly, these committees were called to review only
materials that created a potential compliance issue for the company, an implicit recognition by
defendants that they ultimately would be responsible for the content under review.

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 supporting evidence. This talk dangerously misrepresented to doctors the force and utility of the 2009

Guidelines. Furthermore, Endos internal documents indicate that pharmaceutical sales

representatives employed by Endo, Actavis, and Purdue discussed treatment guidelines with doctors

during individual sales visits.

iii. Key Opinion Leaders and Misleading Science

498. Endo also sought to promote opioids for the treatment of chronic pain through the

use of key opinion leaders and biased, misleading science.

499. Endos 2010 publication plan for Opana ER identified a corporate goal of making

Opana ER the second-leading branded product for the treatment of moderate-to-severe chronic

pain (after OxyContin). Endo sought to achieve that goal by providing clinical evidence for the use

of Opana ER in chronic low back pain and osteoarthritis, and subsequently successfully had articles

on this topic published.135

500. In the years that followed, Endo sponsored articles authored by Endo consultants and

Endo employees, which argued that the metabolic pathways utilized by Opana ER, compared with

other opioids, were less likely to result in drug interactions in elderly low back and osteoarthritis pain

patients. In 2010, Endo directed its publication manager to reach out to a list of consultants

135
These studies suffered from the limitations common to the opioid literatureand worse. None of
the comparison trials lasted longer than three weeks. Endo also commissioned a six-month, open label
trial during which a full quarter of the patients failed to find a stable dose, and 17% of patients
discontinued, citing intolerable effects. In open label trials, subjects know which drug they are taking;
such trials are not as rigorous as double-blind, controlled studies in which neither the patients nor the
examiners know which drugs the patients are taking.

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 conducting an ongoing Endo-funded study, to assess their willingness to respond to an article136 that

Endo believed emphasized the risk of death from opioids, without [] fair balance.137

501. Endos reliance on flawed, biased research is also evident in its 2012 marketing

materials and strategic plans. A 2012 Opana ER slide deck for Endos speakers bureauson which

these recruited physician speakers were trained and to which they were required to adhere

misrepresented that the drug had low abuse potential and suggested that as many as one-quarter of

the adult population could be candidates for opioid therapy. Although the FDA requires such

speaker slide decks to reflect a fair balance of information on benefits and risks, Endos slides

reflected one-sided and deeply biased information. The presentations 28 literature citations were

largely to data on file with the company, posters, and research funded by, or otherwise connected

to, Endo. Endos speakers relayed the information in these slides to audiences that were unaware of

the skewed science on which the information was based.

502. A 2012 Opana ER Strategic Platform Review suffered from similar defects. Only a

small number of the endnote referenced in the document, which it cited to indicate no gap in

scientific evidence for particular claims, were to national-level journals. Many were published in

lesser or dated journals, and written or directly financially supported by opioid manufacturers. Where

the strategy document did cite independent, peer-reviewed research, it did so out of context. For

example, it cited a 2008 review article on opioid efficacy for several claims, including that treatment

136
Susan Okie, A Flood of Opioids, a Rising Tide of Deaths, 363 New Engl. J. Med. 1981 (2010), finding
that opioid overdose deaths and opioid prescriptions both increased by roughly 10-fold from 1990 to
2007.
137
Endo did manage to get a letter written by three of those researchers, which was not published.

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 of chronic pain reduces pain and improves functionality, but it ignored the articles overall focus on

the lack of consistent effectiveness of opioids in reducing pain and improving functional status.138

503. Notwithstanding Endos reliance upon dubious or cherry-picked science, in an Opana

ER brand strategy plan it internally acknowledged the continuing need for a significant investment in

clinical data to support comparative effectiveness. Endo also cited a lack of head-to-head data as a

barrier to greater share acquisition, and the lack of differentiation data as a challenge to addressing

the #1 Key Issue of product differentiation. This acknowledged lack of support did not stop

Endo from directing its sales representatives to tell prescribers that its drugs were less likely to be

abused or be addictive than other opioids.

504. Endo also worked with various KOLs to disseminate various misleading statements

about chronic opioid therapy. For example, Endo distributed a patient education pamphlet edited by

KOL Dr. Russell Portenoy titled Understanding your Pain: Taking Oral Opioid Analgesics. This pamphlet

deceptively minimized the risks of addiction by stating that [a]ddicts take opioids for other reasons

[than pain relief], such as unbearable emotional problems, implying that patients who are taking

opioids for pain are not at risk of addiction.

505. Understanding your Pain: Taking Oral Opioid Analgesics also misleadingly omitted any

description of the increased risks posed by higher doses of opioid medication. Instead, in a Q&A

format, the pamphlet asked [i]f I take the opioid now, will it work later when I really need it? and

responded that [t]he dose can be increased... [y]ou wont run out of pain relief.

506. Dr. Portenoy received research support, consulting fees, and honoraria from Endo for

editing Understanding Your Pain and other projects.

138
Andrea M. Trescot et al., Opioids in the management of non-cancer pain: an Update of American
Society of the Interventional Pain Physicians, Pain Physician 2008 Opioids Special Issue, 11:S5-S62.

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 507. Understanding Your Pain was available on Endos website during the time period of this

Complaint and was intended to reach County prescribers.

508. Endo similarly distributed a book written by Dr. Lynn Webster titled Avoiding Opioid

Abuse While Managing Pain, which stated that in the face of signs of aberrant behavior, increasing the

dose in most cases . . . should be the clinicians first response.

509. A slide from an Opana ER business plan contemplated distribution of the book as

part of Endos efforts to [i]ncrease the breadth and depth of the OPANA ER prescriber base via

targeted promotion and educational programs. The slide indicates that the book would be

particularly effective for [the] PCP audience and instructed [s]ales representatives [to] deliver[ the

book] to participating health care professionals. The slide, shown below, demonstrates Endos

express incorporation of this book by a KOL into its marketing strategy:

510. Endo Documents indicate that, around 2007, the company purchased at least 50,000

copies of the book for distribution. Internal Endo documents Demonstrate that the book had been

approved for distribution by Endos sales force, and that Endo had fewer than 8,000 copies on hand

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in March of 2013. Based on the nationwide and uniform character of Endos marketing, and the

books approval for distribution, this book was available to and was intended to reach prescribers.

c. Endos Deceptive Statements to County Prescribers and Patients

511. Endo also directed the dissemination of the misstatements described above to County

patients and prescribers, including through its sales force, speakers bureaus, CMEs, and the

Painknowledge.com website.

512. Consistent with their training, Endos sales representatives delivered all of these

deceptive messages to County prescribers.

513. Endo also directed misleading marketing to County prescribers and patients through

the APF/NIPC materials it sponsored, reviewed, and approved. For example, Endo hired a New

York-based KOL to deliver a CME titled Managing Persistent Pain in the Older Patient on April 27, 2010.

As described above, this CME misrepresented the prevalence of addiction in older patients and

made misleading claims that chronic opioid therapy would improve patients ability to function. An

email invitation to the event and other NIPC programs was sent to all healthcare professionals in

APFs database.

514. The significant response to Painknowledge.com also indicates that those websites were

viewed by County prescribers, who were exposed to the sites misleading information regarding the

effect of opioids on patients ability to function and the deceptive portrayal of the risks of opioids.

As of September 14, 2010, Painknowledge.com had 10,426 registrants, 86,881 visits, 60,010 visitors, and

364,241 page views. Upon information and belief, based on the sites nationwide availability, among

the sites visitors were County patients and prescribers who were exposed to the sites misleading

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information regarding the effect of opioids on patients ability to function and the deceptive

portrayal of the risks of opioids.

515. Endo knew that the harms from its deceptive marketing would be felt in Shelby

County. It saw workers compensation programs as a lucrative opportunity, and it promoted the use

of opioids for chronic pain arising from work-related injuries, like chronic lower back pain. Endo

developed plans to [d]rive demand for access through the employer audience by highlighting cost

of disease and productivity loss in those with pain; [with a] specific focus on high-risk employers and

employees. In 2007, Endo planned to reach 5,000 workers compensation carriers to ensure that

Opana ER would be covered under disability insurance plans. Endo knew or should have known

that claims for its opioids would be paid for by the Countys workers compensation program.

4. Janssen

516. Janssen promoted its branded opioids, including Duragesic, Nucynta, and Nucynta

ER, through its sales representatives and a particularly active speakers program. Deceptive messages

regarding low addiction risk and low prevalence of withdrawal symptoms were a foundation of this

marketing campaign. Janssen also conveyed other misrepresentations including that its opioids could

safely be prescribed at higher doses and were safer than alternatives such as NSAIDs.

517. Janssen supplemented these efforts with its own unbranded website, as well as third-

party publications and a Front Group website, to promote opioids for the treatment of chronic pain.

These materials likewise made deceptive claims about addiction risk, safety at higher doses, and the

safety of alternative treatments. They also claimed that opioid treatment would result in functional

improvement, and further masked the risk of addiction by promoting the concept of

pseudoaddiction.

518. Based on the highly coordinated and uniform nature of Janssens marketing, Janssen

conveyed these deceptive messages to County prescribers. The materials that Janssen generated in

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collaboration with third-parties also were distributed or made available in Shelby County. Janssen

distributed these messages, or facilitated their distribution, in Shelby County with the intent that

County prescribers and/or consumers would rely on them in choosing to use opioids to treat

chronic pain.

a. Janssens Deceptive Direct Marketing

519. Janssen joined the other Defendants in propagating deceptive branded marketing that

falsely minimized the risks and overstated the benefits associated with the long-term use of opioids

to treat chronic pain. Like the other Defendants, Janssen sales representatives visited targeted

physicians to deliver sales messages that were developed centrally and deployed identically across the

country. These sales representatives were critical in transmitting Janssens marketing strategies and

talking points to individual prescribers. In 2011, at the peak of its effort to promote Nucynta ER,

Janssen spent more than $90 million on detailing.

520. Janssens designs to increase sales through deceptive marketing are apparent on the

face of its marketing plans. For example, although Janssen knew that there was no credible scientific

evidence establishing that addiction rates were low among patients who used opioids to treat chronic

pain, its Nucynta Business Plans indicated that one of the drivers to sell more Nucynta among

primary care physicians was the [l]ow perceived addiction and/or abuse potential associated with

the drug. However, there is no evidence that Nucynta is any less addictive or prone to abuse than

other opioids, or that the risk of addiction or abuse is low. Similarly, Janssen knew that there were

severe symptoms associated with opioid withdrawal including, severe anxiety, nausea, vomiting,

hallucinations, and delirium, but Janssen touted the ease with which patients could come off opioids.

i. Janssens Deceptive Sales Training

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 521. Janssens sales force was compensated based on the number of Nucynta prescriptions

written in each sales representatives territory. Janssen encouraged these sales representatives to

maximize sales of Nucynta and meet their sales targets by relying on the false and misleading

statements described above.

522. For example, Janssens sales force was trained to trivialize addiction risk. A June 2009

Nucynta training module warns that physicians are reluctant to prescribe controlled substances like

Nuycnta because of their fear of addicting patients, but this reluctance is unfounded because the

risks . . . are [actually] much smaller than commonly believed. Janssen also encouraged its sales

force to misrepresent the prevalence of withdrawal symptoms associated with Nucynta. A Janssen

sales training PowerPoint titled Selling Nucynta ER and Nucynta indicates that the low incidence

of opioid withdrawal symptoms is a core message for its sales force. The message was touted at

Janssens Pain District Hub Meetings, in which Janssen periodically gathered its sales force

personnel to discuss sales strategy.

523. This core message of a lack of withdrawal symptoms runs throughout Janssens

sales training materials. For example, Janssens Licensed to Sell Facilitators Guide instructs those

conducting Janssen sales trainings to evaluate trainees, in part, on whether they remembered that

[w]ithdrawal symptoms after abrupt cessation of treatment with NUCYNTA ER were mild or

moderate in nature, occurring in 11.8% and 2% of patients, respectively and whether they were able

to accurately convey this core message. Janssen further claimed in 2008 that low incidence of

opioid withdrawal symptoms was an advantage of the tapentadol molecule.

524. Similarly, a Nucynta Clinical Studies Facilitators Guide instructs individuals training

Janssens sales representatives to ask trainees to describe a key pointthat 83% of patients

reported no withdrawal symptoms after abruptly stopping treatment without initiating alternative

therapyas though he/she is discussing it with a physician.

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 525. This misrepresentation regarding withdrawal was one of the key messages Janssen

imparted to employees in the Retail ST 101 Training delivered to Nucynta sales representatives.

526. Indeed, training modules between 2009 and 2011 instruct training attendees that

most patients [who discontinued taking Nucynta] experienced no withdrawal symptoms and [n]o

patients experienced moderately severe or severe withdrawal symptoms.

527. During the very time Janssen was instructing its sales force to trivialize the risks of

addiction and withdrawal associated with the use of Nucynta to treat chronic pain, it knew or should

have known, that significant numbers of patients using opioids to treat chronic pain experienced

issues with addiction. Janssen knew or should have known that its studies on withdrawal were

flawed and created a misleading impression of the rate of withdrawal symptoms and, as a result, the

risk of addiction.

528. The misleading messages and materials Janssen provided to its sales force were part of

a broader strategy to convince prescribers to use opioids to treat their patients pain, irrespective of

the risks, benefits, and alternatives. This deception was national in scope and included Shelby

County. Janssens nationwide messages reached County prescribers in a number of ways, including

through its sales force in detailing visits, as well as through websites and ads. They were also

delivered to County prescribers by Janssens paid speakers, who were required by Janssen policy and

by FDA regulations to stay true to Janssens nationwide messaging.

ii. Janssens Deceptive Speakers Bureau Programs

529. Janssen did not stop at disseminating its misleading messages regarding chronic opioid

therapy through its sales force. It also hired speakers to promote its drugs and trained them to make

the very same misrepresentations made by its sales representatives.

530. Janssens speakers worked from slide deckswhich they were required to present

reflecting the deceptive information about the risks, benefits, and superiority of opioids outlined

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 above. For example, a March 2011 speakers presentation titled A New Perspective For Moderate to Severe

Acute Pain Relief: A Focus on the Balance of Efficacy and Tolerability set out the following adverse events

associated with use of Nucynta: nausea, vomiting, constipation, diarrhea, dizziness, headache,

anxiety, restlessness, insomnia, myalgia, and bone pain. It completely omitted the risks of misuse,

abuse, addiction, hyperalgesia, hormonal dysfunction, decline in immune function, mental clouding,

confusion, and other known, serious risks associated with chronic opioid therapy. The presentation

also minimized the risks of withdrawal by stating that more than 82% of subjects treated with

tapentadol IR reported no opioid withdrawal symptoms.

531. An August 2011 speaker presentation titled New Perspectives in the Management of Moderate

to Severe Chronic Pain contained the same misleading discussion of the risks associated with chronic

opioid therapy. It similarly minimized the risks of withdrawal by reporting that 86% of patients who

stopped taking Nucynta ER abruptly without initiating alternative opioid therapy reported no

withdrawal symptoms whatsoever. The same deceptive claims regarding risks of adverse events and

withdrawal appeared in a July 2012 speakers presentation titled Powerful Pain Management: Proven

Across Multiple Acute and Chronic Pain Models.

532. These speakers presentations were part of Janssens nationwide marketing efforts.

Upon information and belief, a number of these events were available to and were intended to reach

Shelby County prescribers.

iii. Janssens Deceptive Unbranded Advertising

533. Janssen was aware that its branded advertisements and speakers programs

would face regulatory scrutiny that would not apply to its unbranded materials, so Janssen also engaged

in direct, unbranded marketing.

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 534. One such unbranded project was Janssens creation and maintenance of

Prescriberesponsibly.com (last updated July 2, 2015), a website aimed at prescribers and patients that claims

that concerns about opioid addiction are overstated. A disclaimer at the bottom of the website states

that the site is published by Janssen Pharmaceuticals, Inc., which is solely responsible for its content.

This website was available to and intended to reach County prescribers and patients.

b. Janssens Deceptive Third-Party Statements

535. Janssens efforts were not limited to directly making misrepresentations through its

sales force, speakers bureau, and website. To avoid regulatory constraints and give its efforts an

appearance of independence and objectivity, Janssen obscured its involvement in certain marketing

activities by collaborat[ing] with key patient advocacy organizations to release misleading

information about opioids.

i. AAPM and AGS Finding Relief: Pain Management for Older Adults

536. Janssen worked with AAPM and AGS to create a patient education guide entitled

Finding Relief: Pain Management for Older Adults (2009). In doing so, Janssen contracted with a medical

publishing firm, Conrad & Associates, LLC. The content was drafted by a writer (Medical Writer

X) hired by Conrad & Associates and funded by Janssen. These materials were reviewed, in detail,

by Janssens medical-legal review team, which conducted detailed reviews and gave him editorial

feedback on his drafts, which was adopted in the published version.

537. Medical Writer X understood, without being explicitly told, that since his work was

funded and reviewed by Janssen, the materials he was writing should aim to promote the sale of more

drugs by overcoming the reluctance to prescribe or use opioids to treat chronic pain. He knew that

the publication was undertaken in connection with the launch of a new drug and was part of its

promotional effort. Medical Writer X knew of the drug companys sponsorship of the publication,

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 and he would go to the companys website to learn about the drug being promoted. He also knew

that his clientsincluding Janssenwould be most satisfied with his work if he emphasized that: (a)

even when used long-term, opioids are safe and the risk of addiction is low; (b) opioids are effective

for chronic pain; and (c) opioids are under-prescribed because doctors are hesitant, confused, or face

other barriers.139

538. Finding Relief is rife with the deceptive content. Finding Relief misrepresents that opioids

increase function by featuring a man playing golf on the cover and listing examples of expected

functional improvement from opioids, like sleeping through the night, returning to work, recreation,

sex, walking, and climbing stairs. The guide states as a fact that opioids may make it easier for

people to live normally (emphasis in the original). The functional claims contained in Finding Relief

are textbook examples of Defendants use of third parties to disseminate messages the FDA would

not allow them to say themselves. Compare, e.g.:

Branded Advertisement That Triggers an

FDA Warning Letter (2008)140
Improvement in Daily Activities Includes:
Walking on a flat surface
Standing or sitting
Climbing stairs
Getting in and out of bed or bath
Ability to perform domestic duties

139
Medical Writer X now acknowledges that the lists of adverse effects from chronic opioid use in the
publications he authored, which excluded respiratory depression, overdose, and death and minimized
addiction, were, ridiculous and prime examples of leaving out facts that the pharmaceutical
company sponsors and KOLs knew at the time were true. His writings repeatedly described the risk of
addiction as low. Medical Writer X stated that he understood that the goal was to promote opioids and,
as a result, discussing addiction would be counterproductive.
140
This advertisement drew an FDA Warning Letter dated March 24, 2008. Though the advertisement
was by drug company King, it is used here to demonstrate the types of claims that the FDA regarded
as unsupported.

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with:

Seemingly Independent Publication: Finding Relief: Pain

Management for Older Adults
(Final Authority, Janssen 2009):
Your recovery will be measured by how well you reach functional
goals such as
Sleeping without waking from pain
Walking more, or with less pain
Climbing stairs with less pain
Returning to work
Enjoying recreational activities
Having sex
Sleeping in your own bed

539. Finding Relief also trivialized the risks of addiction describing as a myth that opioids

are addictive, and asserting as fact that [m]any studies show that opioids are rarely addictive when

used properly for the management of chronic pain.

540. Finding Relief further misrepresented that opioids were safe at high doses by listing dose

limitations as disadvantages of other pain medicines and omitting any discussion of risks from

increased doses of opioids. The publication also falsely claimed that it is a myth that opioid doses

have to be bigger over time.

541. Finally, Finding Relief deceptively overstated the risks associated with alternative forms

of treatment. It juxtaposed the advantages and disadvantages of NSAIDs on one page, with the

myths/facts of opioids on the facing page. The disadvantages of NSAIDs are described as

involving stomach upset or bleeding, kidney or liver damage if taken at high doses or for a long

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time, adverse reactions in people with asthma, and increase[d] . . .risk of heart attack and stroke.

Conversely, the only adverse effects of opioids listed by Finding Relief are upset stomach or

sleepiness, which the brochure claims will go away, and constipation. The guide never mentions

addiction, overdose, abuse, or other serious side effects of opioids.

542. Janssen was not merely a passive sponsor of Finding Relief. Instead, Janssen exercised

control over its content and provided substantial assistance to AGS and AAPM to distribute it. A

Copy Review Approval Form dated October 22, 2008 indicates that key personnel from Janssens

Advertising & Promotion, Legal, Health Care Compliance, Medical Affairs, Medical

Communications, and Regulatory Departments reviewed and approved Finding Relief. All six Janssen

personnel approving the publication checked the box on the approval form indicating that Finding

Relief was Approved With Changes. After the publication was modified at the behest of Janssen

personnel, Janssen paid to have its sales force distribute 50,000 copies of Finding Relief throughout the

nation. Thus, Finding Relief is considered labeling for Janssens opioids within the meaning of 21

C.F.R. 1.3(a).

543. AAPM purchased and distributed copies of Finding Relief to all of its members,

including those who reside in Shelby County.

544. Finding Reliefs author, Medical Writer X, later said it was clear, from his position at the

intersection of science and marketing, that the money paid by drug companies to the KOLs and

professional and patient organizations with which he worked, distorted the information provided to

doctors and patients regarding opioids. The money behind these and many other educational

efforts also, he believes, led to a widespread lack of skepticism on the part of leading physicians about

the hazards of opioids. It also led these physicians to accept, without adequate scrutiny, published

studies that, while being cited to support the safety of opioids, were, in fact, of such poor

methodological quality that they would not normally be accepted as adequate scientific evidence.

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 ii. AGS Misleading Medical Education

545. Janssen also worked with AGS on another projectAGSs CME promoting the 2009

guidelines for the Pharmacological Management of Persistent Pain in Older Persons. These guidelines falsely

claimed that the risks [of addiction] are exceedingly low in older patients with no current or past

history of substance abuse although the study supporting this assertion did not analyze addiction

rates by age. They also stated falsely, that [a]ll patients with moderate to severe pain . . . should be

considered for opioid therapy (low quality of evidence, strong recommendation). Based on Janssens

control over AGSs Finding Relief, Janssen also would have exercised control over this project as well.

iii. APF

546. Janssen also worked with APF to carry out its deceptive marketing campaign.

Documents obtained from one of Janssens public relations firms, Ketchum, indicate that Janssen

and the firm enlisted APF as part of an effort to draft media materials and execute [a] launch plan

for Janssens drugs at an upcoming meeting of the AAPM. Janssen also drew on APF publications to

corroborate claims in its own marketing materials and its sales training. Janssen personnel participated

in a March 2011 call with APFs Corporate Roundtable, in which they worked with APF and drug

company personnel to develop strategies to promote chronic opioid therapy. APF personnel spoke

with Janssen employees who shar[ed] expertise from within their company for [a] public awareness

campaign.

547. Their joint work on the Corporate Roundtable demonstrates the close collaboration

between Janssen and APF in promoting opioids for the treatment of chronic pain. APF President

Will Rowe also reached out to Defendantsincluding Janssen rather than his own staff, to identify

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potential authors to answer a 2011 article critical of opioids that had been published in the Archives

of Internal Medicine. Additional examples of APFs collaboration with Janssen are laid out below:

a) Lets Talk Pain

548. Most prominent among these efforts was the Lets Talk Pain website. Janssen

sponsored Lets Talk Pain in 2009, acting in conjunction with APF, American Academy of Pain

Management, and American Society of Pain Management Nursing. Janssen financed and

orchestrated the participation of these groups in the website.

549. Janssen exercised substantial control over the content of the Lets Talk Pain website.

Janssens internal communications always referred to Lets Talk Pain as promoting tapentadol, the

molecule it sold as Nucynta and Nucynta ER. Janssen regarded Lets Talk Pain and another website

Prescriberesponsibly.com as integral parts of Nucyntas launch:

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 550. Janssen documents also reveal that Janssen personnel viewed APF and AAPM as

coalition members in the fight to increase market share.

551. To this end, Janssen and APF entered into a partnership to keep pain and the

importance of responsible pain management top of mind among prescribers and patients. They

agreed to work to reach target audiences that included patients, pain management physicians,

primary care physicians, and KOLs. One of the roles Janssen assumed in the process was to

[r]eview, provide counsel on, and approve materials. Janssen did in fact review and approve

material for the Lets Talk Pain website, as evidenced by the following edits by a Janssen executive to

the transcript of a video that was to appear on the site:

552. The final version of the video on Lets Talk Pain omitted the stricken language above.

553. This review and approval authority extended to the Lets Talk Pain website. Emails

between Janssen personnel and a consultant indicate that, even though the Lets Talk Pain website was

hosted by APF, Janssen had approval rights over its content. Moreover, emails describing Janssens

review and approval rights related to Lets Talk Pain indicate that this right extended to major

changes and video additions.

554. As a 2009 Janssen memo conceded, [t]he Lets Talk Pain Coalition is sponsored by

PriCara, a Division of Ortho-McNeil-Janssen Pharmaceuticals, Inc. and [t]he Coalition and Pricara

maintain editorial control of all Lets Talk Pain materials and publications (emphasis added).

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 555. A 2011 Consulting Agreement between Janssen and one of APFs employees, relating

to the dissemination of national survey data, demonstrates the near-total control Janssen was

empowered to exercise over APF in connection with the Lets Talk Pain website, including requiring

APF to circulate and post Janssens promotional content. The agreement required APF to

participate in status calls between Janssen, APF, AAPM, ASPMN, and Ketchum as requested by

Janssen and required APF to respond to requests to schedule status calls within 48 hours of the

request (emphasis in original). APF also was required to [r]eview and provide feedback to media

materials, including a press release, pitch email, a key messages document, and social media messages,

within one week of receipt (emphasis in original).

556. The agreement further required APF to provide a summary of the survey results in

APFs PAIN MONITOR e-newsletter, post a link to the survey results on APFs Facebook page,

send out tweets related to the survey, serve as a spokesperson available for media interviews, [s]hare

information with any media contacts with whom APF has existing relationships to promote the

announcement of the national survey findings, identify at least two patient spokespersons to talk

about the survey data, and include the survey results in any future APF materials, as appropriate.

Tellingly, any ideas made or conceived by [APF] in connection with or during the performance of

the Agreement shall be the property of, and belong to, [Janssen].

557. Janssen also exercised its control over Lets Talk Pain. Janssen was able to update the

Lets Talk Pain website to describe its corporate restructuring and Janssen personnel asserted their

control over video additions by reviewing and editing the interview touting the functional benefits

of opioids. Given its editorial control over the content of Lets Talk Pain, Janssen was, at all times,

fully aware ofand fully involved in shapingthe websites content.141

141
It bears noting that Janssen does not publicly identify its role in creating Lets Talk Pains content.
Instead, Lets Talk Pain represents that coalition members develop the content that appears on the

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 558. Lets Talk Pain contained a number of misrepresentations.

559. For example, Lets Talk Pain misrepresented that the use of opioids for the treatment of

chronic pain would lead to patients regaining functionality. Lets Talk Pain featured an interview

claiming that opioids were what allowed a patient to continue to function.

560. In 2009, Lets Talk Pain also promoted the concept of pseudoaddiction, which it

described as patient behaviors that may occur when pain is under-treated but differs from true

addiction because such behaviors can be resolved with effective pain management (emphasis added).

Lets Talk Pain was available to, and was intended to, reach Shelby County patients and prescribers.

b) Exit Wounds

561. Janssen also engaged in other promotional projects with and through APF. One such

project was the publication and distribution of Exit Wounds, which, as described above, deceptively

portrayed the risks, benefits, and superiority of opioids to treat chronic pain. Exit Wounds was drafted

by Medical Writer X. It is fully representative of his work on behalf of drug companies.

562. Janssen gave APF substantial assistance in distributing Exit Wounds in Shelby County

and throughout the nation by providing grant money and other resources.

c. Janssens Deceptive Statements to Shelby County Prescribers and Patients

563. Janssen also directed the misstatements described above to Shelby County patients and

prescribers, including through CMEs, its sales force, and recruited physician speakers.

i. Janssens Deceptive Medical Education Programs in Shelby County

564. Janssen sponsored CMEs and talks attended by County prescribers.

ii. Janssens Deceptive Detailing Practices in Shelby County

565. The experiences of specific prescribers confirm both that Janssens national marketing

campaign included the misrepresentations, and that the company disseminated these same

website and lists Janssen as the only sponsor of that coalition.

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 misrepresentations to Shelby County prescribers and consumers. In particular, these prescriber

accounts reflect that Janssen detailers claimed that Nucynta was not an opioid because it worked

on an alternate receptor;142 claimed that Janssens drugs would be less problematic for patients

because they had anti-abuse properties and were steady state; claimed that patients on Janssens

drugs were less susceptible to withdrawal; omitted or minimized the risk of opioid addiction; claimed

or implied that opioids were safer than NSAIDs; and overstated the benefits of opioids, including by

making claims of improved function.

5. Purdue

566. Purdue promoted its branded opioidsprincipally, Oxycontin, Butrans, and

Hysinglaand opioids generally in a campaign that consistently mischaracterized the risk of

addiction and made deceptive claims about functional improvement. Purdue did this through its sales

force, branded advertisements, promotional materials, and speakers, as well as a host of materials

produced by its third-party partners, most prominently APF. Purdues sales representatives and

advertising also misleadingly implied that OxyContin provides a full 12 hours of pain relief, and its

allied Front Groups and KOLs conveyed the additional deceptive messages about opioids safety at

higher doses, the safety of alternative therapies, and the effectiveness of addiction screening tools.

567. Based on the highly coordinated and uniform nature of Purdues marketing, Purdue

conveyed these deceptive messages to Shelby County prescribers. The materials that Purdue

generated in collaboration with third parties also were distributed or made available in Shelby County.

Purdue distributed these messages, or facilitated their distribution, in Shelby County with the intent

that Shelby County prescribers and/or consumers would rely on them in choosing to use opioids to

treat chronic pain.

142
The FDA-approved labels for both Nucynta and Nucynta ER describe the tapentadol molecule as
an opioid agonist and a Schedule II controlled substance that can be abused in a manner similar to
other opioid agonists, legal or illicit.

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 a. Purdues Deceptive Direct Marketing

568. Like the other Defendants, Purdue directly disseminated deceptive branded and

unbranded marketing focused on minimizing the risks associated with the long-term use of opioids to

treat chronic pain. Purdue directed these messages to prescribers and consumers through its sales

force and branded advertisements.

569. Purdue engaged in in-person marketing to doctors in Shelby County. Purdue had 250

sales representatives in 2007, of whom 150 were devoted to promoting sales of OxyContin full time.

Like the other Defendants detailers, Purdue sales representatives visited targeted physicians to deliver

sales messages that were developed centrally and deployed, identically, across the country. These sales

representatives were critical in delivering Purdues marketing strategies and talking points to

individual prescribers. 143 Indeed, Endos internal documents indicate that pharmaceutical sales

representatives employed by Endo, Actavis, and Purdue discussed the AAPM/APS Guidelines,

which as discussed above deceptively concluded that the risk of addiction is manageable for patients

regardless of past abuse histories, with doctors during individual sales visits.

570. Purdues spending on detailing reached its nadir in 2006 and 2007, as the company

faced civil and criminal charges for misbranding OxyContin. Since settling those charges in 2007,

however, Purdue has sharply increased its quarterly spending on promotion through its sales force,

from under $5 million in 2007 to more than $30 million by the end of 2014.

571. Purdue also marketed its drugs through branded advertisements which relied on,

among other deceptive tactics, misleading statements about the efficacy and onset of OxyContin.

143
But Purdue did not stop there. It also tracked around 1,800 doctors whose prescribing patterns
demonstrated a probability that they were writing opioid prescriptions for addicts and drug dealers.
Purdue kept the program secret for nine years and, when it finally did report information about these
suspicious doctors to law enforcement authorities, it only did so with respect to 8% of them.

185
Purdue marketed its drug as effective for 12 hours while knowing that these claims were misleading

because, for many patients, the pain relief lasted for as little as eight hours, leading to end-of-dose

failure and withdrawal symptoms. This prompted doctors to prescribe, or patients to take, higher or

more frequent doses of opioids, all of which increased the risk of abuse and addiction.

572. For example, a Conversion and Titration Guide submitted to the FDA and

distributed to physicians by Purdue, prominently referred to Q12h OxyContin Tablets, meaning

that each tablet was intended to offer . . . every-twelve-hour dosing. Other marketing materials

directed at physicians and disseminated across the country in 2006 touted that OxyContins 12-hour

AcroContin Delivery System was designed to deliver oxycodone over 12 hours, which offered

patients life with Q12H relief. Those same marketing materials included a timeline graphic with

little white paper pill cups at 8AM and, further down the line, at 8PM only. They also proclaimed

that OxyContin provided Consistent Plasma Levels Over 12 Hours and set forth charts

demonstrating absorption measured on a logarithmic scale, which fraudulently made it appear that

levels of oxycodone in the bloodstream slowly taper over a 12-hour time period.

573. Purdue advertisements that ran in 2005 and 2006 issues of the Journal of Pain depicted a

sample prescription for OxyContin with Q12h handwritten. Another advertisement Purdue ran in

2005 in the Journal of Pain touted OxyContins Q12h dosing convenience and displayed two paper

dosing cups, one labeled 8 am and one labeled 8 pm, implying that OxyContin is effective for the

12-hour period between 8 a.m. and 8 p.m. Similar ads appeared in the March 2005 Clinical Journal of

Pain.

574. Purdue continued to include prominent 12-hour dosing instructions in its branded

advertising, such as in a 2012 Conversion and Titration Guide, which states: Because each patients

treatment is personal / Individualize the dose / Q12h OxyContin Tablets.

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 575. As outlined above, however, these statements are misleading because they fail to make

clear that a 12-hour dose does not equate to 12 hours of pain relief. Nevertheless, Purdues direct

marketing materials have misleadingly claimed OxyContin offers 12 hour dosing convenience.

576. As described below, these deceptive statements regarding the efficacy of OxyContin

were also carried into Shelby County by Purdues detailers.

577. Purdues direct marketing materials also misrepresented that opioids would help

patients regain functionality and make it easier for them to conduct everyday tasks like walking,

working, and exercising.

578. For example, in 2012, Purdue disseminated a mailer to doctors titled Pain vignettes.

These vignettes consisted of case studies describing patients with pain conditions that persisted

over a span of several months. One such patient, Paul, is described as a 54-year-old writer with

osteoarthritis of the hands, and the vignettes imply that an OxyContin prescription will help him

work. None of these ads, however, disclosed the truththat there is no evidence that opioids

improve patients lives and ability to function and that there was substantial evidence to the contrary.

579. Some of the greatest weapons in Purdues arsenal, however, were unbranded materials

it directly funded and authored. These were in addition to the unbranded materials, described below,

that Purdue channeled through third parties.

580. In 2011, Purdue published a prescriber and law enforcement education pamphlet titled

Providing Relief, Preventing Abuse, which deceptively portrayed the signsand therefore the

prevalenceof addiction. However, Purdue knew, as described above, that OxyContin was used

non-medically by injection less than less than 17% of the time. Yet, Providing Relief, Preventing Abuse

prominently listed side effects of injection like skin popping and track marks as Indications of

Possible Drug Abusedownplaying much more prevalent signs of addiction associated with

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OxyContin use such as asking for early refills, making it seem as if addiction only occurs when

opioids are taken illicitly.

581. Providing Relief, Preventing Abuse also deceptively camouflaged the risk of addiction by

falsely supporting the idea that drug-seeking behavior could, in fact, be a sign of pseudoaddiction

rather than addiction itself. Specifically, it noted that the concept of pseudoaddiction had emerged

in the literature to describe [drug-seeking behaviors] in patients who have pain that has not been

effectively treated. Nowhere in Providing Relief, Preventing Abuse did Purdue disclose the lack of

scientific evidence justifying the concept of pseudoaddiction, or that the phrase itself had been

coined by a Purdue vice president.

582. Providing Relief, Preventing Abuse was available nationally and was intended to reach

Shelby County prescribers. As described below, the deceptive statements in Providing Relief, Preventing

Abuse regarding addiction were the very same messages Purdue directed at Shelby County prescribers

through its sales force.

583. Purdue also disseminated misrepresentations through two of its unbranded websites, In

the Face of Pain and Partners Against Pain.

584. Consistent with Purdues efforts to portray opioid treatment as essential for the

proper treatment of chronic pain and label skepticism related to chronic opioid therapy as an

inadequate understanding that leads to inadequate pain control, In the Face of Pain criticized

policies that limited access to opioids as being at odds with best medical practices and encouraged

patients to be persistent in finding doctors who will treat their pain. This was meant to imply that

patients should keep looking until they find a doctor willing to prescribe opioids.

585. In the Face of Pain was available nationally and was intended to reach Shelby County

prescribers.

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 586. Purdue also used its unbranded website Partners Against Pain to promote the same

deceptive messages regarding risk of addiction and delivered by its sales representatives. On this

website, Purdue posted Clinical Issues in Opioid Prescribing, a pamphlet that was copyrighted in 2005.

Purdue also distributed a hard-copy version of this pamphlet. Clinical Issues in Opioid Prescribing claimed

that illicit drug use and deception were not indicia of addiction, but rather indications that a

patients pain was undertreated. The publication indicated that [p]seudoaddiction can be

distinguished from true addiction in that the behaviors resolve when the pain is effectively treated.

In other words, Purdue suggested that when faced with drug-seeking behavior from their patients,

doctors should prescribe more opioidsturning evidence of addiction into an excuse to sell and

prescribe even more drugs.

587. Purdues misleading messages and materials were part of a broader strategy to convince

prescribers to use opioids to treat their patients pain, irrespective of the risks, benefits, and

alternatives. This deception was national in scope and included Shelby County. As described above,

Purdues nationwide messages would have reached County prescribers in a number of ways. For

example, they were carried into Shelby County by Purdues sales representatives during detailing visits

as well as made available to Shelby County patients and prescribers through websites and ads,

including ads in prominent medical journals. They would have also been delivered to Shelby County

prescribers by Purdues paid speakers, who were required by Purdue policy and by FDA regulations

to stay true to Purdues nationwide messaging.

b. Purdues Deceptive Third-Party Statements

588. Purdues efforts were not limited to making misrepresentations through its own sales

force and its own branded and unbranded marketing materials. As described above, Purdue knew that

regulatory constraints restricted what it could say about its drugs through direct marketing. For this

189
reason, like the other Defendants, Purdue enlisted the help of third parties to release misleading

information about opioids. The most prominent of these was APF.

i. APF

a) Purdues Control of APF

589. Purdue exercised considerable control over APF, which published and disseminated

many of the most blatant falsehoods regarding chronic opioid therapy. Their relationship, and several

of the APF publications, is described in detail below.

590. Purdue exercised its dominance over APF over many projects and years. Purdue was

APFs second-biggest donor, with donations totaling $1.7 million. Purdue informed APF that the

grant money reflected Purdues effort to strategically align its investments in nonprofit organizations

that share [its] business interests, making clear that Purdues funding depended upon APF

continuing to support Purdues business interests. Indeed, Purdue personnel participated in a March

2011 call with APFs Corporate Roundtable, where they suggested that APF [s]end ambassadors

to talk about pain within companies and hospitals. Thus, Purdue suggested what role APF could

play that would complement its own marketing efforts. On that call, Purdue personnel also

committed to provide APF with a list of industry state advocates who could help promote chronic

opioid therapy, individuals and groups that, upon information and belief, APF reached out to. Purdue

personnel remained in constant contact with their counterparts at APF.

591. This alignment of interests was expressed most forcefully in the fact that Purdue hired

APF to provide consulting services on its marketing initiatives. Purdue and APF entered into a

Master Consulting Services Agreement on September 14, 2011. That agreement gave Purdue

substantial rights to control APFs work related to a specific promotional project. Moreover, based

on the assignment of particular Purdue contacts for each project and APFs periodic reporting on

their progress, the agreement enabled Purdue to be regularly aware of the misrepresentations APF

190
was disseminating regarding the use of opioids to treat chronic pain in connection with that project.

The agreement gave Purduebut not APFthe right to end the project (and, thus, APFs funding)

for any reason. This agreement demonstrates APFs lack of independence and its willingness to

surrender to Purdues control and commercial interests, which would have carried across all of APFs

work.

592. Purdue used this agreement to conduct work with APF on the Partners Against Pain

website. Partners Against Pain is a Purdue-branded site, and Purdue holds the copyright.

593. However, its ability to deploy APF on this project illustrates the degree of control

Purdue exercised over APF. In 2011, it hired an APF employee to consult on the Partners Against Pain

rollout, to orchestrate the media campaign associated with the launch of certain content on the

website, and to make public appearances promoting the website along with a celebrity spokesperson.

Purdue contemplated paying this consultant $7,500 in fees and expenses for 26 hours of work.

Purdue would require this consultant to to discuss and rehearse the delivery of [Purdues] campaign

messages and Purdue committed that [m]essage points will be provided to [the] Consultant in

advance and discussed on [a planned] call. At all times, decisions regarding the final content on the

Partners Against Pain website were at the sole discretion of Purdue.

594. APF also volunteered to supply one of its staff (a medical doctor or a nurse

practitioner) to assist Purdue as a consultant and spokesperson for the launch of one of Purdues

opioid-related projects, Understanding & Coping with Lower Back Pain, which appeared on Partners

Against Pain. One of the consultants was APFs paid employee, Mickie Brown. The consultants

services would be provided in return for a $10,000 consulting fee for APF and $1,500 in honoraria

for the spokesperson. All documents used by the consultant in her media appearances would be

reviewed and approved by individuals working for Purdue. It was not until later that APF worried

about how Purdue sees this program fitting in with our [existing] grant request.

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 595. Given the financial and reputational incentives associated with assisting Purdue in this

project and the direct contractual relationship and editorial oversight, APF personnel were acting

under Purdues control at all relevant times with respect to Partners Against Pain.

596. APF acquiesced to Purdues frequent requests that APF provide patient

representatives for Partners against Pain. Moreover, APF staff and board members and Front Groups

ACPA and AAPM, among others (such as Dr. Webster), appear on Inthefaceofpain.com as Voices of

Hopechampions passionate about making a difference in the lives of people who live with pain

and providing inspiration and encouragement to pain patients. APF also contracted with Purdue

for a project on back pain in which, among other things, it provided a patient representative who

agreed to attend a Purdue-run media training session.

597. According to an Assurance of Voluntary Compliance (AVC) entered into between

the New York Attorney General and Purdue Pharma on August 19, 2015, Inthefaceofpain.com received

251,648 page views between March 2014 and March 2015. With the exception of one document

linked to the website, Inthefaceofpain.com makes no mention of opioid abuse or addiction. Purdues

copyright appears at the bottom of each page of the website, indicating its ownership and control of

its content. There is no other indication that 11 of the individuals who provided testimonials on

Inthefaceofpain.com received payments, according to the AVC, of $231,000 for their participation in

speakers programs, advisory meetings and travel costs between 2008 and 2013. The New York

Attorney General found Purdues failure to disclose its financial connections with these individuals

had the potential to mislead consumers.

598. Nowhere was Purdues influence over APF so pronounced as it was with the APFs

Pain Care Forum (PCF). PCF was and continues to be run not by APF, but by Defendant

Purdues in-house lobbyist, Burt Rosen. As described by a former drug company employee, Rosen

exercised full control of PCF, telling them what do do and how to do it. This control allowed him,

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in turn, to run APF as, in accordance with Rosens thinking, PCF was APF, which was Purdue.

PCF meets regularly in-person and via teleconference, and shares information through an email

listserv.

599. In 2011, APF and another third-party advocacy group, the Center for Practical

Bioethics, were considering working together on a project. Having reviewed a draft document

provided by the Center for Practical Bioethics, the APF employee cautioned that this effort will be

in cooperation with the efforts of the PCF and acknowledged that I know you have reservations

about the PCF and pharma involvement, but I do believe working with them and keeping the lines of

communications open is important. The Center for Practical Bioethics CEO responded by

indicating some confusion about whom to speak with, asking [i]s Burt Rosen the official leader and

reflecting what other sources have confirmed.

600. In 2007, the PCF Education Subgroup, consisting of drug companies Purdue and

Alpharma, and Front Groups APF and ACPA (self-described as industry-funded groups),

developed a plan to address a perceived lack of coordination among the industry and pro-opioid

professional and patient organizations. PCF members agreed to develop simplified key messages

to use for public education purposes. Their messages were reflected in programs like NIPCs Lets

Talk Pain (put together by Endo and APF), and Purdues In the Face of Pain.

601. When the FDA required drug companies to fund CMEs related to opioid risks in

accordance with its 2009 REMS, Purdue, along with these Front Groups, worked through the PCF to

ensure that, although it was mandatory for drug companies to fund these CMEs, it would not be

mandatory for prescribers to attend them. A survey was circulated among Defendants Endo, Janssen,

and Purdue, which predicted that the rates of doctors who would prescribe opioids for chronic pain

would fall by 13% if more than four hours of mandatory patient education were required in

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 accordance with the REMS. With a push from PCF, acting under Purdues direction, the CMEs were

not made mandatory for prescribers.

602. APF showed its indebtedness to Purdue and its willingness to serve Purdues corporate

agenda when APF chairman Dr. James N. Campbell testifyied on the companys behalf at a July 2007

hearing before the Senate Judiciary Committee evaluating the propriety and adequacy of the

OxyContin criminal settlement.144 Despite its ostensible role as a patient advocacy organization,

APF was willing to overlook substantial evidenceresulting in the jailing of Purdue executivesthat

Purdue blatantly, despite its clear knowledge to the contrary, told physicians and patients that

OxyContin was rarely addictive and less addictive than other opioids. Like Purdue, APF ignored

the truth about opioids and parroted Purdues deceptive messaging. Dr. Campbell testified on

Purdues behalf that addiction was a rare problem for chronic pain patients and asserted: [T]he

scientific evidence suggests that addiction to opioids prescribed by legitimate chronic non-cancer pain

patients without prior histories of substance abuse using the medication as directed is rare.

Furthermore, no causal effect has been demonstrated between the marketing of OxyContin and the

abuse and diversion of the drug. There was, and is, no scientific support for those statements.

603. APF President Will Rowe reached out to Defendantsincluding Purduerather than

his own staff, to identify potential authors to answer a 2011 article critical of opioids that had been

published in the Archives of Internal Medicine..

144
Evaluating the Propriety and Adequacy of the Oxycontin Criminal Settlement: Before the S. Comm.
On the Judiciary, 110th Cong. 46-50, 110-116 (2007) (statements of Dr. James Campbell, Chairman,
APF), https://www.judiciary.senate.gov/imo/media/doc/Campbell%20Testimony%20073107.pdf
(accessed May 30, 2017). Purdue was also able to exert control over APF through its relationships with
APFs leadership. Purdue-sponsored KOLs Russell Portenoy and Scott Fishman chaired APFs board.
Another APF board member, Perry Fine, also received consulting fees from Purdue. APF board
member Lisa Weiss was an employee of a public relations firm that worked for both Purdue and APF.
Weiss, in her dual capacity, helped vet the content of the Purdue-sponsored Policymakers Guide, which
is described below.

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 604. Purdues control over APF shaped, and was demonstrated by specific APF, pro-opioid

publications. These publications had no basis in science and were driven (and can only be explained)

by the commercial interest of pharmaceutical companiesPurdue chief among them.

b) A Policymakers Guide

605. Purdue provided significant funding to and was involved with APFs creation and

dissemination of A Policymakers Guide to Understanding Pain & Its Management, originally published in

2011 and still available online. A Policymakers Guide to Understanding Pain & Its Management

misrepresented that there were studies showing that the use of opioids for the long-term treatment of

chronic pain could improve patients ability to function.

606. Specifically, A Policymakers Guide to Understanding Pain & Its Management claimed that

multiple clinical studies demonstrated that opioids . . . are effective in improving [d]aily function,

[p]sychological health [and] [o]verall health-related quality of life for people with chronic pain and

implied that these studies established that the use of opioids long-term led to functional

improvement. The study cited in support of this claim specifically noted that there were no studies

demonstrating the safety of opioids long-term and noted that [f]or functional outcomes, the other

[studied] analgesics were significantly more effective than were opioids.145

607. The Policymakers Guide also misrepresented the risk of addiction. It claimed that pain

had generally been undertreated due to [m]isconceptions about opioid addiction and that less

than 1% of children treated with opioids become addicted.

608. Moreover, the Policymakers Guide attempted to distract doctors from their patients

drug-seeking behavior by labeling it as pseudoaddiction, which, according to the guide, describes

patient behaviors that may occur when pain is undertreated. Like Partners Against Pain, A

145
Andrea D. Furlan et al., Opioids for chronic noncancer pain: a meta-analysis of effectiveness and
side effects, 174(11) Can. Med. Assn J. 1589 (2006).

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Policymakers Guide noted that [p]seudo-addiction can be distinguished from true addiction in that this

behavior ceases when pain is effectively treated. The similarity between these messages regarding

pseudoaddiction highlights the common, concerted effort behind Purdues deceptive statements.

609. The Policymakers Guide further misrepresented the safety of increasing doses of opioids

and deceptively minimized the risk of withdrawal. For example, the Policymakers Guide claimed that

[s]ymptoms of physical dependence on opioids in long-term patients can often be ameliorated by

gradually decreasing the dose of medication during discontinuation while omitting the significant

hardship that often accompanies cessation of use. Similarly, the Policymakers Guide taught that even

indefinite dose escalations are sometimes necessary to reach adequate levels of pain relief while

completely omitting the safety risks associated with increased doses.

610. Purdue provided substantial monetary assistance toward the creation and dissemination

of the Policymakers Guide, providing APF with $26,000 in grant money. APF ultimately disseminated

Policymakers Guide on behalf of Defendants, including Purdue. Purdue was not only kept abreast of

the content of the guide as it was being developed, but, based on the periodic reports APF provided

to Purdue regarding its progress on the Policymakers Guide, had editorial input of the contents.

611. The Policymakers Guide was posted online and was available to, and intended to reach

Shelby County prescribers and consumers. As described below, the deceptive statements in

Policymakers Guide regarding addiction and functionality were the very same messages Purdue directed

at Shelby County through its own sales force.

c) Treatment Options: A Guide for People Living with Pain

612. Purdues partnership with APF did not end with the Policymakers Guide. Purdue also

substantially assisted APF by sponsoring Treatment Options: A Guide for People Living with Pain, starting

in 2007. Based on Purdues control of other APF projects, Purdue also would have exercised control

over Treatment Options.

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 613. Treatment Options is rife with misrepresentations regarding the safety and efficacy of

opioids. For example, Treatment Options misrepresents that the long-term use of opioids to treat

chronic pain could help patients function in their daily lives by stating that, when used properly,

opioids give [pain patients] a quality of life [they] deserve.

614. Further, as outlined above, Treatment Options claims that addiction is rare and that,

when it does occur, it involves unauthorized dose escalations, patients who receive opioids from

multiple doctors, or theft, painting a narrow and misleading portrait of opioid addiction.

615. Treatment Options also promotes the use of opioids to treat long-term chronic pain by

denigrating alternate treatments, most particularly NSAIDs. Treatment Options notes that NSAIDs can

be dangerous at high doses and inflates the number of deaths associated with NSAID use,

distinguishing opioids as having less risk. According to Treatment Options, NSAIDs are different from

opioids because opioids have no ceiling dose. This lack of ceiling is considered to be beneficial as

some patients need larger doses of painkillers than they are currently prescribed. Treatment Options

warns that the risks associated with NSAID use increased if NSAIDs are taken for more than a

period of months, but deceptively omits any similar warning about the risks associated with the

long-term use of opioids.

616. Treatment Options was posted online and remains online today. It was available to and

intended to reach Shelby County prescribers and patients. As described below, the deceptive

statements in Treatment Options regarding addiction and functionality echo the messages Purdue

directed at Shelby County through its own sales force. Purdue also engaged in other promotional

projects with and through APF. One such project was the publication and distribution of Exit

Wounds, which, as described above, deceptively portrayed the risks, benefits, and superiority of

opioids to treat chronic pain.

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 617. Purdue provided APF with substantial assistance in distributing Exit Wounds in Shelby

County and throughout the nation by providing grant money and other resources.

ii. Purdues Work with Other Third Party Front Groups and KOLs

618. Purdue also provided other third-party Front Groups with substantial assistance in

issuing misleading statements regarding the risks, benefits, and superiority of opioids for the long-

term treatment of chronic pain.

a) FSMB Responsible Opioid Prescribing

619. In 2007, Purdue sponsored FSMBs Responsible Opioid Prescribing, which, as described

above, deceptively portrayed the risks, benefits, and superiority of opioids to treat chronic pain.

Responsible Opioid Prescribing also was drafted by Dr. Scott Fishman.

620. Purdue spent $150,000 to help FSMB distribute Responsible Opioid Prescribing. The book

was distributed nationally, and was available to and intended to reach prescribers in Shelby County.

b) AGS Pharmacological Management of Persistent Pain in Older Persons

621. Along with Janssen, Purdue worked with the AGS on a CME to promote the 2009

guidelines for the Pharmacological Management of Persistent Pain in Older Persons. As discussed above, these

guidelines falsely claimed that the risks [of addiction] are exceedingly low in older patients with no

current or past history of substance abuse as the study supporting this assertion did not analyze

addiction rates by age. They also stated, falsely, that [a]ll patients with moderate to severe pain

should be considered for opioid therapy (low quality of evidence, strong recommendation).

622. Controversy surrounding earlier versions of AGS guidelines had taught AGS that

accepting money directly from drug companies to fund the guidelines development could lead to

allegations of bias and the appearance of conflict. Accordingly, AGS endeavored to eliminate the

root cause of that flack by turning down commercial support to produce the 2009 Guidelines.

Having determined that its veneer of independence would be tarnished if it accepted drug company

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 money to create the content, AGS decided to develop the guidelines itself and turn to the drug

companies for funding to distribute the pro-drug company content once it had been created. As

explained by AGS personnel, it was AGSs strategy that we will take commercial support to

disseminate [the 2009 Guidelines] if such support is forthcoming. AGS knew that it would be

difficult to find such support unless the report was viewed favorably by opioid makers.

623. AGS sought and obtained grants from Endo and Purdue to distribute Pharmacological

Management of Persistent Pain in Older Persons. As a result, the publication was distributed nationally, and

was available to and was intended to reach Shelby County prescribers. Indeed, internal documents of

another Defendant, Endo, indicate that pharmaceutical sales representatives employed by Purdue

discussed treatment guidelines that minimized the risk of addiction to opioids with doctors during

individual sales visits.146

c) Chronic Pain Management and Opioid Use: Easing Fears, Managing Risks,
and Improving Outcomes

624. Purdue sponsored a 2012 CME program called Chronic Pain Management and Opioid Use:

Easing Fears, Managing Risks, and Improving Outcomes. The presentation deceptively instructed doctors

that, through the use of screening tools, more frequent refills, and other techniques, high-risk patients

showing signs of addictive behavior could be treated with opioids. This CME was presented at

various locations in the United States and is available online today.

d) Managing Patients Opioid Use: Balancing the Need and Risk

625. Purdue also sponsored a 2011 CME taught by KOL Lynn Webster via webinar titled

Managing Patients Opioid Use: Balancing the Need and Risk. This presentation also deceptively instructed

146
As described above, Purdue also provided substantial support for the AAPM/APS guidelines. The
1997 AAPM and APS consensus statement The Use of Opioids for the Treatment of Chronic Pain was
authored by one of its paid speakers, and 14 out of 21 panel members who drafted the AAPM/APS
Guidelines received support from Defendants Janssen, Cephalon, Endo, and Purdue.

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prescribers that screening tools, patient agreements, and urine test prevented overuse of

prescriptions and overdose deaths. At the time, Dr. Webster was receiving significant funding

from Purdue. Versions of Dr. Websters Opioid Risk Tool appear on, or are linked to, websites run

by Purdue (and other Defendants). The webinar was available to and was intended to reach Shelby

County prescribers.

e) Path of the Patient, Managing Chronic Pain in Younger Adults at Risk for
Abuse

626. Purdue also sponsored a CME program entitled Path of the Patient, Managing Chronic Pain

in Younger Adults at Risk for Abuse. Path of the Patient was devoted entirely to the message of treating

chronic pain with opioids. Although the program purported to instruct a treating physician how to

manage chronic pain in younger adults at risk for abuse, it does no such thing.

627. This educational program, addressing treatment of a population known to be

particularly susceptible to opioid addiction, presents none of the alternative treatment options

available, only discussing treatment of chronic pain with opioids.

628. In a role-play in Path of the Patient, a patient who suffers from back pain tells his doctor

that he is taking twice as many hydrocodone pills as directed. The doctor reports that the pharmacy

called him because of the patients early refills. The patient has a history of drug and alcohol abuse.

Despite these facts, the narrator notes that, because of a condition known as pseudoaddiction, the

doctor should not assume his patient is addicted even if he persistently asks for a specific drug, seems

desperate, hoards medicine, or overindulges in unapproved escalating doses. The doctor in the

role-play treats this patient by prescribing a high-dose, long-acting opioid. This CME was available

online and was intended to reach County prescribers.

f) Overview of Management Options

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 629. Purdue also sponsored a CME titled Overview of Management Options issued by the

American Medical Association in 2003, 2007, and 2013 (the latter of which is still available for CME

credit). The CME was edited by KOL Russel Portenoy, among others. It deceptively instructs

physicians that NSAIDs and other drugs, but not opioids, are unsafe at high doses. In reality, the data

indicates that patients on high doses of opioids are more likely to experience adverse outcomes than

patients on lower doses of the drugs. Dr. Portenoy received research support, consulting fees, and

honoraria from Purdue (among others), and was a paid Purdue consultant. This CME was presented

online in the United States and was available to Shelby County prescribers.

iii. Purdues Misleading Science

630. Purdue also misrepresented the risks associated with long-term opioid use by

promoting scientific studies in a deceptive way. In 1998, Purdue funded two articles by Dr. Lawrence

Robbins, which showed that between 8% and 13% of the patients he studied became addicted to

opioidsa troubling statistic for Purdue, whose market, and marketing, depended upon the claim

that opioids were rarely addictive.147 Purdue had these articles placed in headache-specific journals

where they would be less likely to be encountered by pain specialists or general practitioners. The first

of these articles has been cited a mere 16 times; the second does not even appear on Google scholar.

Five years later, Purdue funded a study of OxyContin in diabetic neuropathy patients, which was

published in 2003. Notwithstanding the fact that that Purdue-funded studies, testing Purdues own

drugs, had previously indicated that addiction rates were between 8% and 13%, Purdues 2003 article

reached back to the 1980 Porter-Jick Letter to support its claim that OxyContin was not commonly

147
Lawrence Robbins, Long-Acting Opioids for Severe Chronic Daily Headache, 10(2) Headache Q. 135
(1999); Lawrence Robbins, Works in Progress: Oxycodone CR, a Long-Acting Opioid, for Severe
Chronic Daily Headache, 19 Headache Q. 305 (1999).

201
 addictive. This article was placed in a prominent pain journal and has been cited 487 times.148 While

this article was drafted over a decade ago, it continues to be relied upon to further the

misrepresentations that opioids are not addictive.

a) Purdues Deceptive Statements to Shelby County Prescribers and

Patients

631. Purdue directed the dissemination of the misstatements described above to Shelby

County patients and prescribers through the Front Groups, KOLs, and publications described above,

as well as through its sales force in Shelby County and through advertisements in prominent medical

journals. The deceptive statements distributed through each of these channels reflect a common

theme of misrepresenting the benefits of Purdues opioids, unfairly portraying the risks of addiction

associated with their use, and deceptively implying that they would improve patients ability to

function.

632. The deceptive message that OxyContin provided 12 hours of pain relief was not only

available to, and intended to, reach Shelby County prescribers through nationally circulated

advertising, but was also carried directly into the offices of Shelby County doctors by Purdues sales

representatives.

633. Likewise, the deceptive messages minimizing addiction were not only directed at Shelby

County patients and prescribers through the publications circulated above, but were also

disseminated directly by Purdues sales force.

634. Purdue also used its sales force to disseminate misleading statements about the ability

of opioids to improve functionality.

148
C. Peter N. Watson et al., Controlled-release oxycodone relieves neuropathic pain: a randomized
controlled trial I painful diabetic neuropathy, 105 Pain 71 (2003).

202
 635. Purdues national marketing campaign included the misrepresentations described above

and the company disseminated these same misrepresentations to Shelby County prescribers and

consumers. In particular, these prescriber accounts reflect that Purdue detailers omitted or minimized

the risk of opioid addiction; claimed that Purdues drugs would be less problematic for patients

because they had extended release mechanisms, were tamper proof, and were steady state; claimed

that OxyContin would provide 12 hours of pain relief; represented that screening tools could help

manage the risk of addiction; minimized the symptoms of withdrawal; claimed or implied that opioids

were safer than NSAIDs; and overstated the benefits of opioids, including by making claims of

improved function.

636. A survey of a sample of physicians, who reported the messages that they retained from

detailing visits and other promotional activity, documented that Purdue sales representatives from at

least between 2008 and 2012, promoted OxyContin as being effective for a full 12 hours. Purdue

sales representatives also promoted OxyContin as improving patients sleep (an unsubstantiated

functional improvement) to an orthopedic surgeon in 2006 and to a physicians assistant in 2013.

Purdue sales representatives also told internists that the reformulation of OxyContin prevented illegal

drug use and that the formulation was less addicting, rather than being harder to adulterate. In 2011,

Purdue sales representatives also claimed that the sustained-release property of OxyContin reduced

patient buzz, which is neither based on scientific evidence nor true.

637. The same survey indicated that Purdue sales representatives promoted its Schedule III

opioid Butrans as having low or little abuse potential.

6. Insys

203
 638. Insys was co-founded in 2002 by Dr. John Kapoor, a serial pharmaceutical industry

entrepreneur known for applying aggressive marketing tactics and sharp price increases on older

drugs.149

639. In 2012, Insys received U.S. Food and Drug Administration approval for Subsys, a

fentanyl sublingual spray product designed to treat breakthrough cancer pain. However, Insys

encountered significant obstacles due to insurers employing a process known as prior authorization.

Prior authorization prevents the over prescription and abuse of powerful and expensive drugs.

The prior authorization process requires additional approval from an insurer or its pharmacy benefit

manager before dispensing and may also impose step therapy which requires beneficiaries to first
150
use less expensive medications before moving on to a more expensive approach.

640. Insys circumvented this process by forming a prior authorization unit, known at one

point as the Insys Reimbursement Center (IRC), to facilitate the process using aggressive and likely

illegal marketing techniques. Insys published education articles that praised their products non-

addictive nature; and funded patient advocacy groups who unknowingly promoted Insys agenda of

raising the profile of pain so that drugs could be prescribed to treat it. Furthermore, Insys former

sales representatives, motivated by corporate greed, paid off medical practitioners to prescribe Subsys

149
U.S. senate Homeland Security & Governmental Affairs Committee, Insys Therapeutics and the
Systemic Manipulation of Prior Authorization (quoting Fentanyl Billionaire Comes Under Fire as Death Toll
Mounts From Prescription Opioids, Wall Street Journal (Nov. 22, 2016)
(www.wsj.com/articles/fentanylbillionaire-comes-under-fire-as-death-toll-mounts-from-prescription-
opioids-1479830968)).
150
Senate Permanent Subcommittee on Investigations, Combatting the Opioid Epidemic: A Review of Anti-
Abuse Efforts in Medicare and Private Health Insurance Systems; see also Department of Health and Human
Services, Centers for Medicare & Medicaid Services, How Medicare Prescription Drug Plans & Medicare
Advantage Plans with Prescription Drug Coverage Use Pharmacies, Formularies, & Common Coverage Rules

204
 in spite of any medical need.151 Insys employees were pressured internally and received significant

monetary incentives to increase the rate of prescription approvals.152

641. According to a federal indictment and ongoing congressional investigation by Sen.

Claire McCaskill, IRC employees pretended to be with doctors offices and falsified medical histories

of patients. The report, acquired by McCaskills investigators, includes transcripts and an audio

recording of employees implementing these techniques in order to obtain authorization from insurers

and pharmacy benefit managers. The transcript reveals an Insys employee pretending to call on behalf

of a doctor and inaccurately describes the patients medical history. 153 For example, Insys employees

would create the impression that the patient had cancer, without explicitly saying so, because cancer

was a requirement for prior clearance to prescribe Subsys. Insys was warned by a consultant that it

lacked needed policies for governing such activities, but the executives failed to implement corrective

internal procedures.

642. In a class action law suit against Insys, it was revealed that management was ware that

only about 10% of prescriptions approved through the Prior Authorization Department were for

cancer patients, and an Oregon Department of Justice Investigation found that 78% of
154
preauthorization forms submitted by Insys on behalf of Oregon patients were for off-label uses.

151
Lopez, Linette. Its been a brutal week for the most shameless company in the opioid crisis- and
its about to get worse, Business Insider, http://www.businessinsider.com/opioid-addiction-drugmaker-
insys-arrests-justice-department-action-2017-7
152
Boyd, Roddy. Murder Incorporated: Insys Therapeutics. Part 1. Southern Investigative Reporting
Foundation. http://sirf-online.org/2015/12/03/murder-incorporated-the-insys-therapeutics-story/;
see also Indictment. United States v. Babich, et al., D. Mass. (No. 1;16 CR 10343).
153
U.S. Senate Homeland Security & Governmental Affairs Committee, Fueling an Epidemic: Insys
Therapeutics and the Systematic Manipulation of Prior Authorization, see p. 7-10.
154
Gusovsky, Dina. The Pain Killer: A drug Company Putting Profits Above Patients, CNBC
(https://www.cnbc.com/2015/11/04/the-deadly-drug-appeal-of-insys-pharmaceuticals.html)

205
 Physicians are allowed to prescribe medications for indications outside of FDA guidelines if they see

fit, but it is illegal for pharmaceutical companies to market a drug for off-label use.

643. In 2008, biopharmaceutical company Cephalon settled with the U.S. Government for

425 million in a suit against the company that alleged it marketed drugs for unapproved uses (off-

label). The FDA approved the drug only for opioid tolerant cancer patients. According to the

Oregon settlement and class-action lawsuit, at least three employees involved in sales and/or

marketing at Cephalon had moved over to Insys Therapeutics.155

644. Additionally, Insys created a legal speaker program which turned out to be a scam.

The Justice Department commented on the program and stated:

The Speaker Programs, which were typically held at high-end restaurants, were
ostensibly designed to gather licensed healthcare professionals who had the capacity to
prescribe Subsys and educate them about the drug. In truth, the events were usually
just a gathering of friends and co-workers, most of whom did not have the ability to
prescribe Subsys, and no educational component took place. Speakers were paid a
fee that ranged from $1,000 to several thousand dollars for attending these dinners. At
times, the sign-in sheets for the Speaker Programs were forged so as to make it appear
that the programs had an appropriate audience of healthcare professionals.

645. Insys paid hundreds of thousands of dollars to doctors in exchange for prescribing

Subsys and three top prescribers have already been convicted of taking bribes.

646. Fentanyl products are considered to be the most potent and dangerous opioids on the

market and up to 50 times more powerful than heroine.156

647. In an internal presentation dated 2012 and entitles, 2013 SUBSYS Brand Plan, Insys

identified one of six key strategic imperatives as Mitigate Prior Authorization barriers. 157 On a

155
Id.
156
U.S. Department of Justice. Drug Enforcement Administration. A Real Threat to Law Enforcement:
Fentanyl.
https://www.dea.gov/druginfo/DEA%20Targets%20Fentanyl%20%20A%20Real%20Threat%20to
%20Law%20Enforcement%20(2016).pdf

206
 later slide, the company identified several tasks associated with this effort, including Build internal

[prior authorization] assistance infrastructure, Establish an internal 1-800 reimbursement assistance

hotline, and Educate field force on [prior authorization] process and facilitation.158

648. Additional materials produced by Insys to the minority staff suggest, however, that

Insys did not match these efforts with sufficient compliance processes to prevent fraud and was

internally aware of the danger of problematic practices. Specifically, on February 18, 2014,

Compliance Implementation Services (CIS)a healthcare consultantissued a draft report to Insys

titled, Insys Call Note, Email, & IRC Verbatim Data Audit Report.159 The introduction to the

report explained that CIS was approached by INSYS legal representative on behalf of the Board

of Directors for Insys to request that CIS support in review of certain communications with Health

Care Professionals (HCPs) and INSYS employees, and report how there were being documented. 160

Insys had expressed concerns with respect to communications with HCPs by INSYS employees

being professional in nature and in alignment with INSYS approved topics regarding off or on-label

promotion of an INSYS product, and general adherence to INSYS documentation requirements. 161

An additional concern stemmed from the lack of monitoring of commercial activities where these

types of interactions could occur.162

157
U.S. senate Homeland Security & Governmental Affairs Committee, Insys Therapeutics and the
Systemic Manipulation of Prior Authorization (quoting Insys Therapeutics, Inc., 2013 Subsys Brand Plan, 2012
Assessment (2012) (INSYS_HSGAC_00007472)).
158
Id. at INSYS_HSGAC_00007765.
159
U.S. senate Homeland Security & Governmental Affairs Committee, Insys Therapeutics and the
Systemic Manipulation of Prior Authorization (quoting Compliance Implementation Services, Insys Call
Note, Email & IRC Verbatim Data Audit Report (Feb. 18, 2014) (INSYS_HSGAC_00007763)).
160
Id. at INSYS_HSGAC_00007765.
161
Id.
162
Id.

207
 649. Given these issues, Insys requested that CIS reviewin partthe general

communications from the INSYS Reimbursement Center (IRC) to HCPs, their office staff or

representatives, as well as health insurance carriers to ensure they were appropriate in nature with

respect to specific uses of SUBSYS, INSYS commercially marketed product.163

650. According to the findings CIS issued, Insys lacked formal policies governing the

actions of its prior authorization unit. For example, [n]o formal and approved policy on appropriate

communications between IRC employees and HCPs, their staff, [health care insurers (HCIs)], or

patients existsthat governs the support function of obtaining a prior authorization for the use of

SUBSYS.164

651. In addition, the report noted that there were also gaps in formally approved

foundational policies, procedures, and [standard operating procedures] with respect to required

processes specifically within the IRC.165

652. In fact, [t]he majority of managerial directives, changes to controlled documents or

templates, as well as updates or revisions to processes were not formally approved, documented, and

disseminated for use, and were sent informally via email blast.166

653. Although four informal standard operating procedures existed with regarded to IRC

functions, these documents lacked a formal review and approval and failed to outline

appropriately the actions performed within the IRC.167

654. The report also explains that Insys lacked procedures for auditing interactions between

IRC employees and outside entities. According to CIS, no formal, documented, or detailed

163
Id.
164
Id. at INSYS_HSGAC_00007770.
165
Id. at INSYS_HSGAC_00007768.
166
Id. at INSYS_HSGAC_00007771.
167
Id. at INSYS_HSGAC_00007770.

208
 processes by which IRC representatives calls via telephone were audited for proper communication

with HCPs or HCIs in any fashion [existed] other than random physical review of a call in a very

informal and sporadic manner.168

655. More broadly, the report notes that no formal and documented auditing and

monitoring or quality control policy, process, or function exists between IRC employee

communications and HCPs, HCP staff, HCIs, or patients.169

656. At the end of the report, CIS provided a number of recommendations concerning IRC

activities. First, CIS suggested that IRC management formally draft and obtain proper review and

approval of an IRC specific policy detailing the appropriate communications that should occur while

performing the IRC associate job functions and interacting with HCPs.170

657. Similarly, IRC management was urged to formally draft IRC-specific standard

operating procedures specific to each job function within the IRC, accompanied by adequate

training and understanding of these processes.171 To ensure compliance with IRC standards, Insys

was also directed to create an electronic system to allow management to monitor both live and

anonymously IRC employee communications both incoming and outgoing. 172 Finally, CIS

recommended that Insys institute a formal process for revising and updating IRC documentation

used for patient and HCP data.173

658. The CIS report concluded by noting, in part, that a review of ten conversations

between IRC employees and healthcare providers, office staff, and insurance carriers revealed that

168
Id. at INSYS_HSGAC_00007769.
169
Id. at INSYS_HSGAC_00007771.
170
Id. at INSYS_HSGAC_00007770.
171
Id. at INSYS_HSGAC_00007771.
172
Id.
173
Id.

209
 all IRC staff was professional in communication, and in no instance was inaccurate or off-label usage

of SUBSYS communicated.174

659. Yet within a year of this conclusion, according to the recording transcribed below, an

Insys IRC employee appears to have misled a PBM representative regarding the IRC employees

affiliation and the diagnosis applicable to Sarah Fuller. The alleged result, in that case, was death due

to inappropriate and excessive Subsys prescriptions.

660. One former Insys sales representative described the motto of this approach to patients

as Start them high and hope they dont die.175

F. The Result of Defendants Fraudulent Scheme

661. Through their direct promotional efforts, along with those of the third-party Front

Groups and KOLs they assisted and controlled, and whose seemingly objective materials they

distributed, Defendants accomplished exactly what they set out to do: change the institutional and

public perception of the risk-benefit assessments and standard of care for treating patients with

chronic pain. As a result, Shelby County doctors began prescribing opioids long-term to treat chronic

painsomething most would never have considered prior to Defendants campaign.

662. But for the misleading information disseminated by Defendants, doctors would not, in

most instances, have prescribed opioids as medically necessary or reasonably required to address

chronic pain.

1. Defendants Fraudulent and Deceptive Marketing of Opioids Directly Caused

Harm to Shelby County.

663. In the first instance, the County was damaged directly, through its payments of false

claims for chronic opioid therapy by (a) partially funding a medical insurance plan for its employees

and (b) its workers compensation program.

174
Id. at INSYS_HSGAC_00007772.
175
Amended Class Action Complaint, Larson v. Insys Therapeutics Inc. (D. Ariz. Oct. 27, 2014.)

210
 664. Defendants marketing of opioids caused health care providers to prescribe, and the

County, through partially funding a medical insurance plan for its employees and its workers

compensation program, to pay for prescriptions of opioids to treat chronic pain. Because of

Defendants unbranded marketing, health care providers wrote and the County paid for prescriptions

of opioids for chronic pain that were filled not only with their drugs, but with opioids sold by other

manufacturers. All of these prescriptions were caused by Defendants fraudulent marketing and

therefore all of them constitute false claims. Because, as laid out below, the County is obligated to

cover medically necessary and reasonably required care, it had no choice but to pay for these false and

fraudulent claims.

665. The fact that the County would pay for these ineligible prescriptions was both the

foreseeable and intended consequence of Defendants fraudulent marketing scheme. Defendants set

out to change the medical and general consensus supporting chronic opioid therapy with the

intention of encouraging doctors to prescribe, and government payors such as Shelby County, to pay

for long-term prescriptions of opioids to treat chronic pain despite the absence of genuine evidence

supporting chronic opioid therapy and the contrary evidence regarding the significant risks and

limited benefits from long-term use of opioids.

a. Increase in Opioid Prescribing Nationally

666. Defendants scheme to change the medical consensus regarding opioid therapy for

chronic pain was greatly successful. During the year 2000, outpatient retail pharmacies filled 174

million prescriptions for opioids nationwide, rising to 257 million in 2009.176

667. Opioid prescriptions increased even as the percentage of patients visiting doctors for

pain remained constant. A study of 7.8 million doctor visits between 2000 and 2010 found that

176
Office of National Drug Control Policy, 2011 Prescription Drug Abuse Prevention Plan,
Whitehouse.gov, (no longer available on whitehouse.gov),
https://obamawhitehouse.archives.gov/ondcp/prescription-drug-abuse1 (accessed May 30, 2017).

211
 opioid prescriptions increased from 11.3% to 19.6% of visits, as NSAID and acetaminophen

prescriptions fell from 38% to 29%, driven primarily by the decline of NSAID use.177

668. Approximately 20% of the population between the ages of 30 and 44 and nearly 30%

of the population over 45 have used opioids. Indeed, [o]pioids are the most common means of

treatment for chronic pain.178 From 1980 to 2000, opioid prescriptions for chronic pain visits

doubled. This resulted not from an epidemic of pain, but an epidemic of prescribing. A study of 7.8

million doctor visits found that prescribing for pain increased by 73% between 2000 and 2010even

though the number of office visits in which patients complained of pain did not change and

prescribing of non-opioid pain medications decreased. For back pain aloneone of the most

common chronic pain conditionsthe percentage of patients prescribed opioids increased from 19%

to 29% between 1999 and 2010, even as the use of NSAIDs or acetaminophen declined and referrals

to physical therapy remained steadyand climbing.

669. This increase corresponds with, and was caused by, Defendants massive marketing

push. As reflected in the chart below, according to data obtained from a marketing research

company, Defendants spending on marketing of opioids nationwideincluding all of the drugs at

issue herestood at more than $20 million per quarter and $91 million annually in 2000. By 2011,

that figure hit its peak of more than $70 million per quarter and $288 million annually, an increase of

more than three-fold. By 2014, the figures dropped to roughly $45 million per quarter and $182

million annually, as Defendants confronted increasing concerns regarding opioid addiction, abuse,

and diversion, and as Janssen, which accounted for most of the spending reduction, prepared to sell

177
Matthew Daubresse et al., Ambulatory Diagnosis and Treatment of Nonmalignant Pain in the United
States, 2000-2010, 51(10) Med. Care 870 (2013).
178
Deborah Grady et al., Opioids for Chronic Pain, 171(16) Arch. Intern. Med. 1426 ( 2011).

212
its U.S. rights to Nucynta and Nucynta ER. Even so, Defendants still spent double what they spent in

2000 on opioid marketing.

670. Defendants opioid detailing visits to individual doctors made up the largest

component of this spending, with total detailing expenditures more than doubling between 2000 and

2014 to $168 million annually.

671. Each Defendant's promotional spending reflects its participation in this marketing

blitz. Between 2000 and 2011:

Actaviss promotional spending, which was virtually nonexistent in the 2004-

2008 period, began to sharply rise 2009. The third quarter of 2011 saw a peak

of $3 million at one point in 2011 and nearly $7 million for the year, as shown

below:

213
214
 Cephalons quarterly spending steadily climbed from below $1 million in 2000 to

more than $4 million in 2014 (and more than $13 million for the year), including

a peak, coinciding with the launch of Fentora, of nearly $9 million half way

through 2007 (and more than $27 million for the year), as shown below:

215
 Endo 's quarterly spending went from the $2 million to $4 million range from

2000 to 2004 to more than $10 million following the launch of Opana ER in

mid-2006 (and more than $38 million for the year in 2007) and more than $8

million coinciding with the launch of a reformulated version in 2012 (and nearly

$34 million for the year):

216
 Janssens quarterly spending dramatically rose from less than $5 million in 2000

to more than $30 million in 2011, coinciding with the launch of Nucynta ER

(with yearly spending at $142 million for 2011) as shown below:

217
 Purdues quarterly spending notably decreased from 2000 to 2007, as Purdue

came under investigation by the Department of Justice, but then spiked to above

$25 million in 2011 (for a total of $110 million that year), and continued to rise,

as shown below:

b. The Countys Increased Spending on Opioids

672. As a direct and foreseeable consequence of Defendants wrongful conduct, Plaintiff

has been required to spend millions of dollars each year in its efforts to combat the public nuisance

created by Defendants deceptive marketing campaign. Plaintiff has incurred, and continues to incur,

costs related to opioid addiction and abuse, including, but not limited to, health care costs, criminal

justice and victimization costs, social costs, and lost productivity costs. Defendants misrepresentations

regarding the safety and efficacy of long-term opioid use proximately caused injury to Plaintiff and its

residents.

218
 i. Defendants Misrepresentations Were Material

673. Defendants misrepresentations were material to, and influenced, the Countys

decisions to pay claims for opioids for chronic pain (and, therefore, to bear its consequential costs in

treating overdose, addiction, and other side effects of opioid use). In the first instance, the County

would not have been presented with, or paid, claims for opioids that would not have been written but

for Defendants fraudulent and deceptive marketing. Second, the County has demonstrated that

Defendants marketing is material by taking further steps to ensure that the opioids are only

prescribed and covered when medically necessary or reasonably required.

674. As laid out above, Defendants misrepresentations related to the Countys requirement

that medical treatments be medically necessary or reasonably required a condition of payment for

any medical treatment under the Countys health plans and workers compensation program. But for

Defendants fraudulent and deceptive marketing, prescribers would have accurately understood the

risks and benefits of opioids and would not have prescribed opioids where not medically necessary or

reasonably required to treat chronic pain. Misrepresentations as to, for example, whether patients

were likely to become addicted to the drug, would be able to resume life activities, and would

experience long-term relief were not minor or insubstantial matters, but the core of prescribers

decision-making.

675. It is the Countys practice not to pay claims that are not medically necessary or

reasonably required. However, the County would not have known whether a prescriber had made an

informed judgment that a particular claim for opioids was medically necessary or reasonably required,

or, conversely had acted under the influence of Defendants fraudulent and deceptive marketing. It is

not clear from the face of a claim whether: (1) the patient suffered from cancer or another terminal

condition, for example, where long-term prescribing was medically necessary or appropriate; or (2)

the prescriber was exposed to Defendants marketing materials, treatment guidelines, or education

219
 programs, or visited by a drug representative who engaged in affirmative misrepresentations or

omissions, for example.

ii. The Countys Increased Costs Correlate with Defendants Promotion

676. The Countys spending in connection with opioids rose along with Defendants

spending to promote opioids. That spending was directly impacted by opioid use (and its

consequences in abuse, addiction, and overdose) in Shelby County.

677. It is also distressing (and a sign of further problems ahead) that the drop in opioid

prescribing beginning in 2014 has been accompanied by a corresponding increase in Defendants

promotional spending, which is headed towards a new high, despite evidence of the grave toll that

opioids are taking on law enforcement, public health, and individual lives.

2. Defendants Fraudulent and Deceptive Marketing of Opioids Directly Caused

Harm to Shelby County Consumers.

a. Increased Opioid Use Has Led to an Increase in Opioid Abuse, Addiction, and
Death

678. Nationally, the sharp increase in opioid use has led directly to a dramatic increase in

opioid abuse, addiction, overdose, and death. Scientific evidence demonstrates a very strong

correlation between therapeutic exposure to opioid analgesics, as measured by prescriptions filled,

and opioid abuse. Deaths from opioid overdose have risen steadily since 1990 in parallel with

increasing prescription of these drugs.179 Prescription opioid use contributed to 16,917 overdose

deaths nationally in 2011more than twice as many deaths as heroin and cocaine combined; drug

poisonings now exceed motor vehicle accidents as a cause of death. More Americans have died from

opioid overdoses than from participation in the Vietnam War.

179
Deborah Grady et al., Opioids for Chronic Pain, 171(16) Arch. Intern. Med. 1426 ( 2011).

220
 679. Contrary to Defendants misrepresentations, most of the illicit use stems from prescribed

opioids; in 2011, 71% of people who abused prescription opioids got them through friends or

relatives, not from drug dealers or the internet. According to the CDC, the 80% of opioid patients

who take low-dose opioids from a single prescriber (in other words, who are not illicit users or

doctor-shoppers) account for 20% of all prescription drug overdoses.

680. Death statistics represent only the tip of the iceberg. According to 2009 data, for every

overdose death that year, there were nine abuse treatment admissions, 30 emergency department

visits for opioid abuse or misuse, 118 people with abuse or addiction problems, and 795 non-medical

users. Nationally, there were more than 488,000 emergency room admissions for opioids other than

heroin in 2008 (up from almost 173,000 in 2004).

681. Emergency room visits tied to opioid use likewise have sharply increased in Shelby

County.

682. Widespread opioid use and abuse in Shelby County are problems even when they do

not result in injury or death. Opioid addiction is affecting residents of all ages, ethnicities, and socio-

economic backgrounds in the County. Many addicts start with a legal opioid prescriptionchronic

back pain, fibromyalgia, or even dental painand do not realize they are addicted until they cannot

stop taking the drugs.

683. These glaring omissions, described consistently by counselors and patients, mirror and

confirm Defendants drug representatives own widespread practice, as described above, of omitting

any discussion of addiction from their sales presentations to physicians or in their educational

materials.

b. Increased Opioid Use Has Increased Costs Related to Addiction Treatment

684. Shelby County has opioid treatment programs, Substance Alternative Clinics, that

provide a comprehensive treatment program for persons addicted to heroin or other opioids.

221
 685. In addition to intense counseling, many treatment programs prescribe additional drugs

to treat opioid addiction. Nationally, in 2012, nearly 8 billion prescriptions of the two drugs

commonly used to treat opioid addictionbuprenorphine/naloxone and naltrexonewere written

and paid for. Studies estimate the total medical and prescription costs of opioid addiction and

diversion to public and private healthcare payors to be $72.5 billion.

c. Increased Opioid Use Has Fueled An Illegal Secondary Market for Narcotics and
the Criminals Who Support It

686. Defendants success in extending the market for opioids to new patients and chronic

conditions has created an abundance of drugs available for criminal use and fueled a new wave of

addiction, abuse, and injury. Defendants scheme supplies both ends of the secondary market for

opioidsproducing both the inventory of narcotics to sell and the addicts to buy them. One

researcher who has closely studied the public health consequences of opioids has found, not

surprisingly, that a substantial increase in the nonmedical use of opioids is a predictable adverse

effect of substantial increases in the extent of prescriptive use.180 It has been estimated that the

majority of the opioids that are abused come, directly or indirectly, through doctors prescriptions.

687. A significant black market in prescription opioids also has arisen, not only creating and

supplying additional addicts, but fueling other criminal activities.

688. In addition, because heroin is cheaper than prescription painkillers, many prescription

opioid addicts migrate to heroin. Self-reported heroin use nearly doubled between 2007 and 2012,

from 373,000 to 669,000 individuals. In 2010, more than 3,000 people in the U.S. died from heroin

overdoses, also nearly double the rate in 2006. Nearly 80% of those who used heroin in the past

year had previously abused prescription opioids. Patients become addicted to opioids and then move

180
G. Caleb Alexander et al., Rethinking Opioid Prescribing to Protect Patient Safety and Public Health,
308(18) JAMA 1865 (2012).

222
 on to heroin because these prescription drugs are roughly four times more expensive than heroin on

the street. In the words of one federal DEA official, Who would have ever thought in this country it

would be cheaper to buy heroin than pills . . . [t]hat is the reality were facing.181

689. That reality holds true in Shelby County. According to addiction programs, a typical

course sees addicts requesting more and more opioids from their doctors, who eventually cut them

off. Many addicts then doctor-shop for additional prescriptions, and when that source runs out, turn

to the streets to buy opioids illicitly. A significant number become heroin addicts. Addiction

treatment programs, whose patient populations vary, reported rates of patients who had switched

from prescription opioids to heroin ranging from half to 95%. Those addicts who do reach treatment

centers often do so when their health, jobs, families and relationships reach the breaking point, or

after turning to criminal activity such as prostitution and theft to sustain their addiction.

Unfortunately, few are successful in getting and staying clean; repeated relapse is common.

3. Defendants Fraudulent Marketing Has Led to Record Profits

690. While the use of opioids has taken an enormous toll on Shelby County and its

residents, Defendants have gained blockbuster profits. In 2012, health care providers wrote 259

million prescriptions for opioid painkillers182roughly one prescription per American adult. Opioids

generated $8 billion in revenue for drug companies just in 2010.

691. Financial informationwhere availableindicates that Defendants each experienced

a material increase in sales, revenue, and profits from the fraudulent, misleading, and unfair market

181
Matt Pearce & Tina Susman, Philip Seymour Hoffmans death calls attention to rise in heroin use,
L.A. Times, Feb. 3, 2014, http://articles.latimes.com/2014/feb/03/nation/la-na-heroin-surge-
20140204 (accessed May 30, 2017).
182
Press Release, Center for Disease Control, Opioid painkiller prescribing varies widely among states:
Where you live makes a difference (July 1, 2014), https://www.cdc.gov/media/releases/2014/p0701-
opioid-painkiller.html (accessed May 30, 2017).

223
activities laid out above. Purdues OxyContin sales alone increased from $45 million in 1996 to $3.1

billion in 2010.

4. Defendants Fraudulently Concealed Their Misrepresentations

692. At all times relevant to this Complaint, Defendants took steps to avoid detection of,

and fraudulently conceal, their deceptive marketing and conspiratorial behavior.

693. First, and most prominently, Defendants disguised their own roles in the deceptive

marketing of chronic opioid therapy by funding and working through patient advocacy and

professional front organizations and KOLs. Defendants purposefully hid behind these individuals

and organizations to avoid regulatory scrutiny and to prevent doctors and the public from

discounting their messages.

694. While Defendants were listed as sponsors of many of the publications described in this

Complaint, they never disclosed their role in shaping, editing, and exerting final approval over their

content. Defendants exerted their considerable influence on these promotional and educational

materials.

695. In addition to hiding their own role in generating the deceptive content, Defendants

manipulated their promotional materials and the scientific literature to make it appear as if they were

accurate, truthful, and supported by substantial scientific evidence. Defendants distorted the meaning

or import of studies they cited and offered them as evidence for propositions they did not actually

support. The true lack of support for Defendants deceptive messages was not apparent to the

medical professionals who relied upon them in making treatment decisions, nor could they have been

detected by the County.

696. Thus, while the opioid epidemic was evident, Defendants, in furtherance of their

respective marketing strategies, intentionally concealed their own role in causing it. Defendants

successfully concealed from the medical community, patients, and health care payers facts sufficient

224
to arouse suspicion of the existence of claims that the County now asserts. The County was not

alerted to the existence and scope of Defendants industry-wide fraud and could not have acquired

such knowledge earlier through the exercise of reasonable diligence.

697. Through their public statements, marketing, and advertising, Defendants deceptions

deprived the County of actual or presumptive knowledge of facts sufficient to put them on notice of

potential claims.

G. Through Their Public Statements, Marketing, And Advertising, Defendants

Deceptions Deprived Plaintiff Of Actual Or Presumptive Knowledge Of Facts
Sufficient To Put Them On Notice Of Potential Claims. Defendants Entered Into And
Engaged In A Civil Conspiracy.

698. Defendants entered into a conspiracy to engage in the wrongful conduct complained of

herein, and intended to benefit both independently and jointly from their conspiratorial enterprise.

699. Defendants reached an agreement between themselves to set up, develop, and fund an

unbranded promotion and marketing network to promote the use of opioids for the management of

pain in order to mislead physicians, patients, and others through misrepresentations or omissions

regarding the appropriate uses, risks and safety of opioids.

700. This network is interconnected and interrelated and relied upon Defendants collective

use of and reliance upon unbranded marketing materials, such as KOLs, scientific literature, CMEs,

patient education materials, and Front Groups. These materials were developed and funded

collectively by Defendants, and Defendants relied upon the materials to intentionally mislead

consumers and medical providers of the appropriate uses, risks and safety of opioids.

701. By knowingly misrepresenting the appropriate uses, risks, and safety of opioids,

Defendants committed overt acts in furtherance of their conspiracy.

225
 H. Defendants Flooded Plaintiff Counties with Suspiciously Large Amounts of Opioids.

702. The Distributor Defendants are opioid distributors in Shelby County.

703. The Distributor Defendants purchased opioids from manufacturers, such as the named

defendants herein, and sold them to pharmacies throughout Shelby County.

704. The Distributor Defendants played an integral role in the chain of opioids being

distributed throughout Shelby County.

705. According to the Drug Enforcement Administration Automation of Reports and

Consolidated Orders System (ARCOS), defendants distributed an alarming and suspicious number

of opiods pain medications to Shelby County.

706. The Defendants were each on notice that the controlled substances they manufactured

and distributed were the kinds that were susceptible to diversion for illegal purposes, abused,

overused, and otherwise sought for illegal, unhealthy and problematic purposes.

707. The Defendants were each on notice that there was an alarming and suspicious rise in

manufacturing and distributing opioids to retailers within Shelby County during this time period.

708. As entities involved in the manufacture and distribution of opioid medications,

Defendants were engaged in abnormally and/or inherently dangerous activity and had a duty of care

under Tenessee Law.

709. The Defendants had a duty to notice suspicious or alarming orders of opioid

pharmaceuticals and to report suspicious orders to the proper authorities and governing bodies

including the DEA and the Tenessee Department of Health.

710. The Defendants knew or should have known that they were supplying vast amounts of

dangerous drugs in Shelby County that were already facing abuse, diversion, misuse, and other

problems associated with the opioid epidemic.

226
 711. The Defendants failed in their duty to take any action to prevent or reduce the

distribution of these drugs.

712. The Defendants were in a unique position and had a duty to inspect, report, or

otherwise limit the manufacture and flow of these drugs to Shelby County.

713. The Defendants, in the interest of their own massive profits, intentionally failed in this

duty.

714. The Defendants have displayed a continuing pattern of failing to submit suspicious

order reports.

715. In 2008, McKesson paid a $13.25 million fine to settle similar claims regarding

suspicious orders from internet pharmacies.183

716. Despite these prior penalties, McKessons pattern of failing to report suspicious orders

continued for many years.

717. According to the DEA, McKesson supplied various U.S. pharmacies an increasing

amount of oxycodone and hydrocodone pills during the time in question, and frequently misused

products that are part of the current opioid epidemic.184

718. On January 17, 2017, the DEA announced that McKesson had agreed to pay a record

$150 million fine and suspend the sale of controlled substances from distribution centers in several

states.185

719. In 2008, defendant Cardinal paid a $34 million penalty to resolve allegations that it

failed to report suspicious opioid orders.186

183
http://www.wvgazettemail.com/news-health/20161218/suspicious-drug-order-rules-never-
enforced-by-state (accessed May 30, 2017).
184
https://www.justice.gov/opa/pr/mckesson-agrees-pay-record-150-million-settlement-failure-
report-suspicious-orders (accessed May 30, 2017).
185
Id.

227
 720. Despite this past penalty, in 2017, it was announced that defendant Cardinal agreed to a

$44 million fine to resolve allegations that it failed to alert the Drug Enforcement Agency to

suspicious orders of powerful narcotics by pharmacies in Florida, Maryland, and New York.187

721. Defendant AmeriSource faced a criminal inquiry into its oversight of painkiller sales

in 2012.188 They have paid out fines for similar claims to the state of West Virginia.

722. Despite the charges, fines, and penalties brought against the Distributor Defendants in

the past, they continued to fail to report suspicious orders or prevent the flow of prescription

opioids, including into Shelby County.

723. The Distributor Defendants are also members of the Healthcare Distribution

Management Association (HDMA). The HDMA created Industry Compliance Guidelines which

stressed the critical role of each member of the supply chain in distributing controlled substances.

The HDMA guidelines provided that [a]t the center of a sophisticated supply chain, Distributors are

uniquely situated to perform due diligence in order to help support the security of controlled

substances they deliver to their customers.

724. Between the years in question, including 2007 through 2016, the Distributor

Defendants have shipped millions of doses of highly addictive controlled opioid pain killers into

Shelby County.

725. Many of these orders should have been stopped, or at the very least, investigated as

potential suspicious orders.

186
https://www.justice.gov/usao-wdwa/pr/united-states-reaches-34-million-settlement-cardinal-
health-civil-penalties-under-0 (access May 30, 2017).
187
https://www.washingtonpost.com/national/health-science/cardinal-health-fined-44-million-for-
opioid-reporting-violations/2017/01/11/4f217c44-d82c-11e6-9a36-
1d296534b31e_story.html?utm_term=.7049c4431465 (accessed on May 30, 2017).
188
http://www.nytimes.com/2013/06/12/business/walgreen-to-pay-80-million-settlement-over-
painkiller-sales.html (accessed on May 30, 2017).

228
 726. The sheer volume of the increase in opioid pain medications, including OxyCodone,

being distributed to retailers, should have put the Defendants on notice to investigate and report such

orders.

727. The Defendants manufactured and delivered an excessive and unreasonable amount of

opioid pain medications to retailers in Shelby County.

728. Upon information and belief, the Defendants did not refuse to manufacture, ship, or

supply any opioid medications to any pharmacy in Shelby County from 2007 to the present.

729. The Defendants knew or should have known that they were manufacturing and

distributing levels of opioid medications that far exceeded the legitimate needs of Shelby County.

730. The Defendants also paid their sales force bonuses and commissions on the sale of

most or all of the highly addictive opioid pain medications within Shelby County.

731. The Defendants made substantial profits from the opioids sold in Shelby County.

732. The Defendants violated Tenesee law and regulations for manufacturers and

distributors, by failing to properly report suspicious orders.

733. By the actions and inactions described above, the Defendants showed a reckless

disregard for the safety of the residents of Shelby County.

734. By the actions and inactions described above, the Defendants caused great harm to

Shelby County.

735. On December 27, 2007, the U.S. Department of Justice, Drug Enforcement

Administration, sent a letter to Cardinal stating, This letter is being sent to every entity in the United

States registered with the Drug Enforcement Agency (DEA) to manufacture or distribute controlled

substances. The purpose of this letter is to reiterate the responsibilities of controlled substance

manufacturers and distributors to inform DEA of suspicious orders in accordance with 21 C.F.R.

1301.74(b).

229
 736. The DEA has provided briefings to each of the Defendant Distributors and conducted

a variety of conferences regarding their duties under federal law.

737. The DEA sent a letter to each of the Defendant Distributors on September 26, 2006,

warning that it would use its authority to revoke and suspend registrations when appropriate. The

letter expressly states that a distributor, in addition to reporting suspicious orders, has a statutory

responsibility to exercise due diligence to avoid filling suspicious orders that might be diverted into

other than legitimate medical, scientific, and industrial channels. The DEA warns that even just one

distributor that uses its DEA registration to facilitate diversion can cause enormous harm.

738. The DEA sent a second letter to each of the Defendant Distributors on December 27,

2007. This letter reminded the Defendant Distributors of their statutory and regulatory duties to

maintain effective controls against diversion and design and operate a system to disclose to the

registrant suspicious orders of controlled substances. The letter further explains:

The regulation also requires that the registrant inform the local DEA Division Office
of suspicious orders when discovered by the registrant. Filing a monthly report of
completed transactions (e.g., excessive purchase report or high unity purchases)
does not meet the regulatory requirement to report suspicious orders. Registrants are
reminded that their responsibility does not end merely with the filing of a suspicious
order report. Registrants must conduct an independent analysis of suspicious orders
prior to completing a sale to determine whether the controlled substances are likely to
be diverted from legitimate channels. Reporting an order as suspicious will not absolve
the registrant of responsibility if the registrant knew, or should have known, that the
controlled substances were being diverted.

The regulation specifically states that suspicious orders include orders of unusual size,
orders deviating substantially from a normal pattern, and orders of an unusual
frequency. These criteria are disjunctive and are not all inclusive. For example, if an
order deviates substantially from a normal pattern, the size of the order does not
matter and the order should be reported as suspicious. Likewise, a registrant need not
wait for a normal pattern to develop over time before determining whether a
particular order is suspicious. The size of an order alone, whether or not it deviates
from a normal pattern, is enough to trigger the registrants responsibility to report the
order as suspicious. The determination of whether an order is suspicious depends not
only on the ordering patterns of the particular customer, but also on the patterns of the
registrants customer base and the pattern throughout the segment of the regulated
industry.

230
 Registrants that rely on rigid formulas to define whether an order is suspicious may be
failing to detect suspicious orders. For example, a system that identifies orders as
suspicious only if the total amount of a controlled substance ordered during one month
exceeds the amount ordered the previous month by a certain percentage or more is
insufficient. This system fails to identify orders placed by a pharmacy if the pharmacy
placed unusually large orders from the beginning of its relationship with the distributor.
Also, this system would not identify orders as suspicious if the order were solely for
one highly abused controlled substance if the orders never grew substantially.
Nevertheless, ordering one highly abused controlled substance and little or nothing else
deviates from the normal pattern of what pharmacies generally order.

When reporting an order as suspicious, registrants must be clear in their

communication with DEA that the registrant is actually characterizing an order as
suspicious. Daily, weekly, or monthly reports submitted by registrant indicating
excessive purchases do not comply with the requirement to report suspicious orders,
even if the registrant calls such reports suspicious order reports.

Lastly, registrants that routinely report suspicious orders, yet fill these orders without
first determining that order is not being diverted into other than legitimate medical,
scientific, and industrial channels, may be failing to maintain effective controls against
diversion. Failure to maintain effective controls against diversion is inconsistent with
the public interest as that term is used in 21 U.S.C. 823 and 824, and may result in
the revocation of the registrants DEA Certificate of Registration.

739. As a result of the decade-long refusal by the Defendant Distributors to abide by federal

law, the DEA has repeatedly taken administrative action to force compliance. The United States

Department of Justice, Office of the Inspector General, Evaluation and Inspections Divisions,

reported that the DEA issued final decisions in 178 registrant actions between 2008 and 2012. The

Office of Administrative Law Judges issued a recommended decision in a total of 177 registrant

actions before the DEA issued its final decision, including 76 actions involving orders to show cause

and 41 actions involving immediate suspension orders. The Drug Enforcement Administrations

Adjudication of Registrant Actions, United States Department of Justice, Office of the Inspector

General, Evaluation and Inspections Divisions, I-2014-003 (May 2014). The public record reveals

many of these actions:

On April 24, 2007, the DEA issued an Order to Show Cause and Immediate
Suspension Order against the AmerisourceBergen Orlando, Florida distribution center

231
(Orlando Facility) alleging failure to maintain effective controls against diversion of
controlled substances. On June 22, 2007, AmerisourceBergen entered into a
settlement which resulted in the suspension of its DEA registration;

On November 28, 2007, the DEA issued an Order to Show Cause and Immediate
Suspension Order against the Cardinal Health Auburn, Washington Distribution
Center (Auburn Facility) for failure to maintain effective controls against diversion of
hydrocodone;

On December 5, 2007, the DEA issued an Order to Show Cause and Immediate
Suspension Order against the Cardinal Health Lakeland, Florida Distribution Center
(Lakeland Facility) for failure to maintain effective controls against diversion of
hydrocodone;

On December 7, 2007, the DEA issued an Order to Show Cause and Immediate
Suspension Order against the Cardinal Health Swedesboro, New Jersey Distribution
Center (Swedesboro Facility) for failure to maintain effective controls against diversion
of hydrocodone;

On January 30, 2008, the DEA issued an Order to Show Cause and Immediate
Suspension Order against the Cardinal Health Stafford, Texas Distribution Center
(Stafford Facility) for failure to maintain effective controls against diversion of
hydrocodone;

On May 2, 2008, McKesson Corporation entered into an Administrative Memorandum

of Agreement (2008 MOA) with the DEA which provided that McKesson would
maintain a compliance program designed to detect and prevent the diversion of
controlled substances, inform DEA of suspicious orders required by 21 C.F.R.
1301.74(b), and follow the procedures established by its Controlled Substance
Monitoring Program;

On September 30, 2008, Cardinal Health entered into a Settlement and Release
Agreement and Administrative Memorandum of Agreement with the DEA related to
its Auburn Facility, Lakeland Facility, Swedesboro Facility, and Stafford Facility. The
document also referenced allegations by the DEA that Cardinal failed to maintain
effective controls against the diversion of controlled substances at its distribution
facilities located in McDonough, Tenessee (McDonough Facility), Valencia, California
(Valencia Facility) and Denver, Colorado (Denver Facility);

On February 2, 2012, the DEA issued an Order to Show Cause and Immediate
Suspension Order against the Cardinal Health Lakeland, Florida Distribution Center
(Lakeland Facility) for failure to maintain effective controls against diversion of
oxycodone;

232
 On June 11, 2013, Walgreens paid $80 million in civil penalties for dispensing
violations under the CSA regarding the Walgreens Jupiter Distribution Center and six
Walgreens retail pharmacies in Florida;

On December 23, 2016, Cardinal Health agreed to pay a $44 million fine to the DEA
to resolve the civil penalty portion of the administrative action taken against its
Lakeland, Florida Distribution Center; and

On January 5, 2017, McKesson Corporation entered into an Administrative

Memorandum Agreement with the DEA wherein it agreed to pay a $150,000,000 civil
penalty for violation of the 2008 MOA as well as failure to identify and report
suspicious orders at its facilities in Aurora, CO; Aurora, IL; Delran, NJ; LaCrosse, WI;
Lakeland, FL; Landover, MD; La Vista, NE; Livonia, MI; Methuen, MA; Sante Fe
Springs, CA; Washington Courthouse, OH; and West Sacramento, CA

Rather than abide by these public safety statutes, the Defendant Distributors, individually and

collectively through trade groups in the industry, pressured the U.S. Department of Justice to halt

prosecutions and lobbied Congress to strip the DEA of its ability to immediately suspend distributor

registrations. The result was a sharp drop in enforcement actions and the passage of the

Ensuring Patient Access and Effective Drug Enforcement Act which, ironically, raised the burden

for the DEA to revoke a distributors license from imminent harm to immediate harm and

provided the industry the right to cure any violations of law before a suspension order can be

issued.189

189
See Lenny Bernstein and Scott Higham, Investigation: The DEA Slowed Enforcement While the Opioid
Epidemic Grew Out of Control, WASH. POST (Oct. 22, 2016),
https://www.washingtonpost.com/investigations/the-dea-slowed-enforcement-while-the-opioid-
epidemic- grew-out-of-control/2016/10/22/aea2bf8e-7f71-11e6-8d13-
d7c704ef9fd9_story.html?utm_term=.d84d374ef062; Lenny Bernstein and Scott Higham, Investigation:
U.S. Senator Calls for Investigation of DEA Enforcement Slowdown Amid Opioid Crisis, WASH. POST (Mar. 6,
2017), https://www.washingtonpost.com/investigations/us-senator-calls-for-investigation-of-dea-
enforcement-slowdown/2017/03/06/5846ee60-028b-11e7-b1e9-
a05d3c21f7cf_story.html?utm_term=.b44410552cde.

233
 740. Defendant CENTER POINTE is a clinic located in Tennesee.

741. Defendant CENIER POIN1E employs approximately five nurse practitioners.

742. Customers of Defendant CENTER POINTE are able to obtain prescriptions for

opioids without a legitimate medical purposes.

743. Defendant CENTER POINTE prescribes opioids at a rate higher than typical medical

clinics, and thereby knowingly participates in the illegal drug market in Tennessee

744. Defendant CENTER POINTE prescribes in excess of 50,000 pills of hydrocodone

and oxycodone per week.

745. Typical opioid prescriptions dispensed by this clinic are greater in quantity than is

typical of other clinics.

746. It has been reported that prescriptions for 120 Lortab and 120 oxycodone for 30- day

period for one individual is representative of the typical prescription coming from Defendant

CENTER POINTE.

747. The vast majority of individuals obtaining opioids from Defendant CENTER

POINTE pay in cash or use TemaCare to fill their prescriptions.

748. Many of the prescription drugs obtained from Defendant CENTER POINTE are

diverted to the illegal opioid drug market throughout Tennesee, including Shelby County.

ELIZABETH ANN BOWERS CAMPBELL

234
 749. Defendant ELIZABETH ANN BOWERS CAMPBELL ("CAMPBELL") admitted

that on or about July 15, 2013, she began working as a medical assistant for Dr. Sheng Tchou, who

owned. and operated Appalachian Pain Reb.ab Associates in Johnson City, Tennessee.

750. Appalachian Pain Rehab Associates is located at 411 Princeton Road in Johnson City.

Appalachian Pain Associates is located in Tennessee House District 6, as is Sit N Bull restaurant (730

Gray Station Road), Poblanos (2697 Boones Creek Road), and the home address of Defendant

CAMPBELL.

751. While working at Appalachian Pain Associates, Defendant CAMPBELL became

addicted to hydrocodone. After learning that her co-worker had been forging and calling in fraudulent

prescriptions for herself and others, Defendant CAMPBELL, too, began utilizing Dr. Tchou's DEA

number to call in fraudulent prescriptions for herself and others. Defendant CAMPBELL through her

actions knowingly participated in the illegal drug market in Tennessee.

752. As part of a conspiracy with at least three others, from approximately January 3, 2014

until approximately June 28, 2014, Defendant CAMPBELL and others conspired to distribute and

possess with the intent to distribute numerous controlled substances, including: 4,620 dose units of

hycirocodone, 720 dose units of oxycodone, among others.

753. Defendant CAMPBELL was criminally charged in the U.S. District Court for the

Eastern District of Tennessee with Conspiracy to Distribute Hydrocodone and Carisoprodol in 2015.

754. On August 25, 2015, Defendant CAMPBELL pled guilty to Conspiracy to Distribute

and Possess with Intent to Distribute Hydrocodone, Conspiracy to Distribute and Possess with Intent

to Distribute Carisoprodol, and Acquiring or Obtaining Possession of Controlled Substances by

Misrepresentation, Fraud, Forgery, Deception, or Subterfuge.

755. On March 28, 2016, Defendant CAMPBELL was sentenced to four years of probation,

ten days of incarceration.

235
 PAMELA AND GREGORY MOORE

756. Defendant PAMELA MOORE is married to Gregory Harold Moore, who has pled

guilty to Conspiracy to Distribute and Posses with the Intent to Distribute Hydrocodone, Oxyco done,

Oxymniphone, and Methamphetamine; Possession of the Firearm in furtherance of a Drug Trafficking

Crime; and Conspiracy to threaten and attempt to engage in conduct which would cause bodily injury

with the intent to retaliate against a witness. Gregory Harold Moore admitted that he sold Lortab,

Roxicodone, and oxycodone pills approximately 20-50 pills a week.

757. Defendant PAMELA. MOORE admitted that she was aware that Gregory Moore had

been selling pills from their residence and his workshop located at 1996 Carters Valley Road,

Surgoinsville, Tennessee.

758. After he was arrested, Gregory Moore enlisted the help of his wife to spread the word

all around Hawkins County that their operation had been compromised by an informant. He also told

her that when the police searched their home, they missed finding many of the pills. Gregory Moore

told his wife, Defendant PAMELA MOORE, where the drugs were hidden, how many pills there were,

what they were worth, and who to contact about them. Defendant PAMELA MOORE admitted to

police that she met with co-conspirators about paying off the drug debt and/or coming to get the

drugs that were hidden on her property. Defendant PAMELA MOORE through her actions

knowingly participated in the illegal drug market in Tennessee.

759. On August 26, 2015, after monitoring the jail calls between Defendant PAMELA

MOORE and her husband, the police obtained permission to search their home. During the search,

the police recovered 711 combined oxycodone and oxymorphone pills and an additionalquantity of

methampheta mine. Specifically, they found: 330 (40 mg) oxymorplaone pills, 9 (20 mg) oxym.orphone

pills, 13 (15 mg) oxymorphone pills, 2 (10 mg) oxymorphone pills, and 357 (30 mg) oxyco done pills.

236
 760. Defendant PAMELA MOORE was charged criminally in the U.S. District Court for

the Eastern District of Tennessee with Aiding and Abetting the Possession with the Intent Distribute

of Oxycodone and Oxymorphone in 2015 and Conspiracy to Threaten or Intimidate a Witness.

761. On April 29, 2016, Defendant PAMELA MOORE pled guilty to Conspiracy to

Threaten or Intimidate a Witness.

762. On October 4, 2016, Defendant PAMELA MOORE was sentenced to 36 months of

probation.

COUNT I

DECEPTIVE ACTS AND PRACTICES

TENNESSEE CONSUMER PROTECTION ACT 47-18-109
(AGAINST ALL DEFENDANTS)

763. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint

as if they were fully set forth herein.

764. Defendants acts were consumer oriented.

765. Defendants unlawfully enaged in unfair and deceptive acts.

766. Defendants acts and/or practices caused actual harm to the County, including financial

loss.

767. The County has been injured as a result of Defendants acts and/or practices.

768. Defendants conduct was and continues to be willfull and knowing.

769. Plaintiff and its residents have been injured by reason of Defendants violation of

349.

770. Plaintiff is entitled to recover its damages caused by the violation of The Tennessee

Consumer Protection Act 47-18-109(a)(3) by the defendants in an amount to be determined at trial,

plus attorneys fees.

237
 COUNT II

PUBLIC NUISANCE
(AGAINST ALL DEFENDANTS)

771. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint

as if they were fully set forth herein.

772. Under Tennessee statutory law, "[a]ny person who uses, occupies, establishes or

conducts a nuisance, or aids or abets therein, and the owner, agent or lessee of any interest in any such

nuisance, together with the persons employed in or in control of any such nuisance by any such owner,

agent or lessee, is guilty of maintaining a nuisance and such nuisance shall be abated as provided

hereinafter." Tenn. Code Ann. 29-3-101(b).

773. The term "nuisance" includes "[a]ny place in or upon which. . . [the] unlawful sale of

any regulated legend drug, narcotic or other controlled substance . . are carried on or permitted, and

personal property, contents, furniture, fixtures, equipment and stock used in or in connection with the

conducting and maintaining any such place for any such purposes." Id. 29-3 -101 (a)(2)(A).

774. The nuisance statute further provides that, in an "order of abatement, the court may

assess costs of public services required to abate or manage the nuisance, including, but not limited to,

law enforcement costs, if any, caused by the public nuisance," Id. 29-3-110.

775. Defendants, individually and acting through their employees and agents, and in concert

with each other, have intentionally, recklessly, or negligently engaged in conduct or omissions which

endanger or injure the property, health, safety or comfort of a considerable number of persons in

Shelby County by their production, promotion, and marketing of opioids for use by residents of

Shelby County.

776. Defendants conduct is unreasonable.

238
 777. Defendants conduct is not insubstantial or fleeting. It has caused deaths, serious

injuries, and a severe disruption of public peace, order and safety; it is ongoing, and it is producing

permanent and long-lasting damage.

778. Defendants conduct constitutes a public nuisance.

779. Defendants conduct directly and proximately caused injury to Plaintiff and its

residents.

780. Plaintiff and its residents suffered special injuries distinguishable from those suffered

by the general public.

COUNT III

FRAUD
(AGAINST ALL DEFENDANTS)

781. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint

as if they were fully set forth herein.

782. Defendants, individually and acting through their employees and agents, and in concert

with each other, knowingly made material misrepresentations and omissions of facts to Plaintiff and its

residents to induce them to purchase, administer, and consume opioids as set forth in detail above.

783. Defendants knew at the time that they made their misrepresentations and omissions

that they were false.

784. Defendants intended that Plaintiff and its residents would rely on their

misrepresentations and omissions.

785. Plaintiff and its residents reasonably relied upon Defendants misrepresentations and

omissions.

239
 786. In the alternate, the Defendants recklessly disregarded the falsity of their

representations regarding opioids.

787. By reason of their reliance on Defendants misrepresentations and omissions of

material fact Plaintiff and its residents suffered actual pecuniary damage.

788. Defendants conduct was willful, wanton, and malicious and was directed at the public

generally.

COUNT IV

UNJUST ENRICHMENT
(AGAINST ALL DEFENDANTS)

789. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint

as if they were fully set forth herein.

790. Defendants acted willfully, wantonly, and with conscious disregard of the rights of the

Plaintiff and its residents.

791. As an expected and intended result of their conscious wrongdoing as set forth in this

Complaint, Defendants have profited and benefited from opioid purchases made by Plaintiff and its

residents.

792. In exchange for the opioid purchases, and at the time Plaintiff and its residents made

these payments, Plaintiff and its residents expected that Defendants had provided all of the necessary

and accurate information regarding those risks and had not misrepresented any material facts regarding

those risks.

793. Defendants, through the wrongful conduct described above, have been unjustly

enriched at the expense of Plaintiff.

794. In equity and good conscience, it would be unjust and inequitable to permit defendants

to enrich themselves at the expense of the Plaintiff and its residents.

240
 795. By reason of the foregoing, Defendants must disgorge its unjustly acquired profits and

other monetary benefits resulting from its unlawful conduct and provide restitution to the Plaintiff.

COUNT IV

NEGLIGENCE
(AGAINST ALL DEFENDANTS)

796. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint

as if they were fully set forth herein.

797. Defendants have a duty to exercise reasonable care in the distribution of opioids.

798. Defendants breached this duty by failing to take any action to prevent or reduce the

distribution of the opioids.

799. As a proximate result, Defendants and its agents have caused Shelby County to incur

excessive costs related to diagnosis, treatment, and cure of addiction or risk of addiction to opioids, the

County has borne the massive costs of these illnesses and conditions by having to provide necessary

resources for care, treatment facilities, and law enforcement services for County Residents and using

County resources in relation to opioid use and abuse.

800. Defendants were negligent in failing to monitor and guard against third-party

misconduct and participated and enabled such misconduct.

801. Defendants were negligent in disclosing to Shelby County suspicious orders for opioids

pursuant to the requirements of the Controlled Substances Act as well as Tennessee State law.

802. Defendants acts and omissions imposed an unreasonable risk of harm to others

separately and/or combined with the negligent and/or criminal acts of third parties.

803. Defendants are in a class of a limited number of parties that can legally manufacture

and distribute opioids, which places it in a position of great trust by the County.

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 804. The trust placed in Defendants by Shelby County through the license to manufacture

and distribute opioids in Shelby County creates a duty on behalf of Defendants to prevent diversion of

the medications it supplies to illegal purposes.

805. A negligent and/or intentional violation of this trust poses distinctive and significant

dangers to the County and its residents from the diversion of opioids for non-legitimate medical

purposes and addiction to the same by consumers.

806. Defendants were negligent in not acquiring and utilizing special knowledge and special

skills that relate to the dangerous activity in order to prevent and/or ameliorate such distinctive and

significant dangers.

807. Defendants are required to exercise a high degree of care and diligence to prevent

injury to the public from the diversion of opioids during manufacture and distribution.

808. Defendants breached their duty to exercise the degree of care, prudence, watchfulness,

and vigilance commensurate to the dangers involved in the transaction of its business.

809. Defendants are in exclusive control of the management of the opioids it manufactured

and distributed in Shelby County.

810. Shelby County is without fault and the injuries to the County and its residents would

not have occurred in the ordinary course of events had Defendants used due care commensurate to

the dangers involved in the manufacture and distribution of opioids.

COUNT V

VIOLATION OF TENNESEES DRUG DEALER LIABILITY ACT (DDLA)

TENN CODE 29-38-102
(AGAINST ALL DEFENDANTS)

811. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint

as if they were fully set forth herein.

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 812. The DDLA makes anyone who knowlingly participates in the illegal drug market

within this stateliable for civil damages. Tenn. Code Ann. 29-38-105(a).

813. A person may recover damages under the [DDLA]for injury resulting from an

individuals use of an illegal drug. Tenn. Code Ann. 29-38-105(b).

814. Under Tennesee criminal laws, such as Tenn. Code Ann 39-17-417 and Tenn. Code

Ann 39-17-418, drugs such as oxycodone, Roxicodone, OxyContin, Opana, and other opiods are

illegal drugsif possessed, sold, and distributed without a valid prescipriton.

815. Defendants, including the manufacturers, distributors, and pharmacy defendants,

knowingly participated in the manufacture and/or distribution of prescription opioids that reached the

Opioid Epidemic Affected Counties during all times relevant to this complaint. For purposes of the

DDLA, Defendants' "illegal drug market targetcommunity" is the entire state of Tennessee, because

Defendants participated in the illegal drug market by distributing 4 ounces or more of a "specified

illegal drug." Term. Code Ann 29-38- 104(8), 29-38-109(4). As noted by the Tennessee

Department of Health in a 2015 presentation, the Tennessee market for hydrocodone and oxycodone

pills comprised of 51 hydrocodone pills and 113.5 oxycodone pills for every Tennessean.

816. The DDLA imposed liability on those who directly particiate in the distribution of an

illegal drug tht causes damages.

817. Shelby County has suffered economic loss due to the illegal sale and use of opioids

throughout its county.

818. Shelby County funds drug treatment and substance abuse programs for both its

residents and its employees.

819. Shelby County has suffered a financial loss due to expending sums on behalf of its

residents and employees for drug treatment and substance abuse.

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 820. The defendants herein have knowingly participated in the illegal drug market with the

State of Tenneessee and Shelby County.

821. The defendants knowingly allowed opioid pain medications to enter the illegal drug

market in the State of Tenneessee and Shelby County.

822. The defendants knowlingly failed to implement effective controls and procedures in

their supply chains to guard against theft, diversion, and abuse of prescription opioids, and failed to

adequately design and operate a system to detect, halt, and report suspicious orders of prescription

opioids.

823. As a result, the Defendants knowlingly disseminating massive quantities of prescription

opiodis to suspect physicians and pharmacies and into the black market, including pill mills, such as

Center Pointe and throughout Tennesee.

824. Defendants knowingly disseminated massive quantities of prescription opioids to

suspect physicians and pharmacies, into the black market, and pill mills.

825. The Manufacturer Defendants also enabled and/or failed to prevent the illegal

diversion of prescription opioids into the black market, including CENTER POINTE and other "pill

mills" as well as CAMPBELL, PAMELA MOORE, and other drug dealers, and pharmacies such as

CVS and Rite Aide, knowing that such opioids would be illegally trafficked and abused.

826. CVS and Rite Aid have sold millions of doses of opioid pain killers throughout Shelby

County.

827. The defendants failed to take steps to avoid opioid pain medications from being

diverted into the illegal drug market.

828. The defendants failed to report orders of opioid pain medications which indicated that

the drugs were being diverted into the illegal drug market.

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 829. The defendants failed to provide effective controls and procedures to guard against the

diversion of opioids.

830. The defendants knowingly allowed physicians to distributed opioid pain medications

without legimiate medical purposes.

831. The defendants willfully turned a blind eye by regularly distributing large quantities of

opioids to retails and dispensers.

832. Defendants are liable under the DDLA for damages caused by opioids that were

acquired for distribution channels in which Defendants were a market participant.

833. Plaintiffs incorporate all preceding and subsequent paragraphs by reference

COUNT VI
NEGLIGENT MARKETING
(AGAINST ALL DEFENDANTS)

834. Plaintiff incorporates the allegations within all prior paragraphs within this Complaint

as if they were fully set forth herein.

835. Defendants had a duty to exercise reasonable care in the marketing of opioids.

836. Defendants were aware of the potentially dangerous situation involving opioids.

837. Defendants marketed opioids in an improper manner by:

a. overstating the benefits of chronic opioid therapy, promising improvement in patients

function and quality of life, and failing to disclose the lack of evidence supporting long-term use;

b. trivializing or obscuring opioids serious risks and adverse outcomes, including the risk

of addiction, overdose, and death;

c. overstating opioids superiority compared with other treatments, such as other non-

opioid analgesics, physical therapy, and other alternatives;

d. mischaracterizing the difficulty of withdrawal from opioids and the prevalence of

withdrawal symptoms;

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 e. marketing opioids for indications and benefits that were outside of the opioids labels

and not supported by substantial evidence.

838. It was Defendants marketingand not any medical breakthroughthat rationalized

prescribing opioids for chronic pain and opened the floodgates of opioid use and abuse. The result has

been catastrophic.

839. Defendants disseminated many of their false, misleading, imbalanced, and unsupported

statements indirectly, through KOLs and Front Groups, and in unbranded marketing materials. These

KOLs and Front Groups were important elements of Defendants marketing plans, which specifically

contemplated their use, because they seemed independent and therefore outside FDA oversight.

Through unbranded materials, Defendants, with their own knowledge of the risks, benefits and

advantages of opioids, presented information and instructions concerning opioids generally that were

contrary to, or at best, inconsistent with information and instructions listed on Defendants branded

marketing materials and drug labels. Defendants did so knowing that unbranded materials typically are

not submitted to or reviewed by the FDA.

840. Defendants also marketed opioids through the following vehicles: (a) KOLs, who

could be counted upon to write favorable journal articles and deliver supportive CMEs; (b) a body of

biased and unsupported scientific literature; (c) treatment guidelines; (d) CMEs; (e) unbranded patient

education materials; and (f) Front Group patient-advocacy and professional organizations, which

exercised their influence both directly and through Defendant-controlled KOLs who served in

leadership roles in those organizations.

841. Defendants knew or should have known that opioids were unreasonably dangerous

and could cause addiction.

842. Defendants marketing was a factor in physicians, patients, and others to prescribe or

purchase opioids. As a direct and proximate result of Defendants negligence, the County has suffered

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and continues to suffer injury, including but not limited to incurring excessive costs related to

diagnosis, treatment, and cure of addiction or risk of addiction to opioids, bearing the massive costs of

these illnesses and conditions by having to provide necessary resources for care, treatment facilities,

and law enforcement services for County Residents and using County resources in relation to opioid

use and abuse.

843. Plaintiff is entitled to recover damages caused by Defendants negligence in an amount

to be determined at trial.

COUNT VII: CAPS FOUND IN TENN. CODE ANN. 29-39-102 AND 29-39-104 ARE
UNCONSTITUTIONAL AND VOID AB INITIO

844. Plaintiffs seek a judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201,

declaring that the caps on personal injury and punitive damages set forth in Term. Code Ann. 29-39-

102 and Tenn Code Ann. 29-39-104 are an unconstitutional deprivation of the right to trial by jury

set forth in Article I, Section 6, of the Constitution of the State of Tennessee, which provides that the

right of trial by jury shall remain inviolate, and violate the provisions of Article XI, Section 16, of the

Constitution of the State of Tennessee which absolutely precludes the Legislature from exercising any

legislative power to remove or restrict the right of juries in civil cases to determine damages. On

October 1, 2011, the Tennessee Civil Justice Act went into effect, enacting -"caps" in all Tennessee

personal injury case a: non-economic damages and punitive damages. Tenn. Code Ann. 29-39-102;

Term. Code Ann. 29-39-104. Under that Act, Plaintiffs' non- economic damages are purportedly

capped at $750,000, and their ability to recover punitive damages is capped at twice the compensatory

damages up to a maximum of $500,000.

845. Tenn, Code Ann. 29-39-102 and Tema. Code Aim. 29-39-104 are unconstitutional

deprivations of Plaintiffs' constitutionally protected right to trial by juiy. Those provisions violate

Article I, Section 6, of the Constitution of the State of Tennessee, which provides that the right of trial

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by jury shall remain inviolate. In addition, the subject statutory caps violate Article I, Section 17, of the

Tennessee Constitution, which states that all courts shall be open, and every man shall have a remedy

for injury done by due course of law and without denial or delay. The subject statutory caps usurp the

powers of the Judicial Branch in violation of Article II, Sections 1 & 2 of the Tennessee Constitution.

In addition, the subject statutory caps violate Article XI, Section 16, of the Tennessee Constitution

which indicates that the rights of citizens articulated in Tennessee's Bill of Right "shall never be

violated on any pretense whatever. . and shall forever remain inviolate."

846. Therefore, Plaintiffs request a declaration that the statutory caps are unconstitutional,

void ab initio, and of no force and effect.

847. Pursuant to Tenn. Code Ann. 29-14-107, a copy of this Complaint is being served on

the Attorney General of the State of Tennessee, notifying the State of Tennessee Attorney General

that Plaintiffs are challenging the constitutionality of Tenn. Code Ann. 29-39-102 and Tenn. Code

Ann. 29-39-104.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment against defendants, jointly and severally, as to all

Counts, awarding Plaintiff in amounts that exceed the jurisdiction of all lower Courts:

i. compensatory damages in an amount sufficient to fairly and completely compensate

Plaintiff for all damages;

ii. permanent injunctive relief;

iii. treble damages, penalties and costs pursuant to Tennessee Consumer Practice Act 47-

18-109(a)(3).

iv. punitive damages;

v. attorneys fees;

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 vi. Under the DDLA, lelconomic damages, including, but not limited to: the cost of

treatment and rehabilitation, medical expenses, loss of economic or educational

potential, loss of productivity, absenteeism, support expenses, accidents or injury, and

any other pecuniary loss proximately caused by the illegal drug use" described in this

Complaint. Tenn. Code Ann. 29-38-106(c)(1). In this case, in addition to these

expenses, Shelby County have incurred numerous structural costs, including, but not

limited to, increased healthcare costs, the cost of increased police services, and the cost

of increased incarceration services.interest, costs and disbursements;

vii. Under the DDLA,. Plaintiffs are entitled to recover awards from all Defendants,

including but not limited to the costs and disbursements of this action, reasonable

attorneys' fees, accountants' and experts' fees, costs, and expenses as provided by the

common fund doctrine and other applicable law pursuant to Tenn. Code Ann. 29-38-

106(c)(3) (4)-(5).

viii. Enjoin the Defendants and their employees, officers, directors, agents, successors,

assignees, merged or acquire predecessors, parent or controlling entities, subsidiaries,

and all other persons acting in concert or participation with them, from engaging in

unlawful sales of prescription opioid pills and ordering temporary, preliminary, or

permanent injunction;

ix. such and further relief as this Court may deem just and proper.

Dated: November 2, 2017

Memphis, Tennessee
THE LAW OFFICES OF JULIAN T
BOLTON

_______________________________
Julian T. Bolton, Esq.
119 S. Main Street

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 Memphis, TN 38103
(901) 308-1716

-and-

NAPOLI SHKOLNIK, PLLC

_____________________________
Paul J. Napoli ( to be admitted pro hac vice)
Joseph L. Ciaccio (to be admitted pro hac vice)
Salvatore Badala (to be admitted pro hac vice)
Paul B. Maslo (to be admitted pro hac vice)
NAPOLI SHKOLNIK PLLC
400 Broadhollow Road, Suite 305
Melville, New York 11747
212-397-1000

-and-

SIMPSON LAW FIRM PLLC

______________________________
John Simpson, Esq. (to be admitted pro hac
vice)
615 Griswold Suite 1300
Detroit, Michigan 48226
Telephone: (313) 231-2359

Attorneys for Plaintiff

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