CHARLESTON – An attorney for the state of West Virginia attempted to pin down an expert defense witness, accusing him of being a pro-opioid-industry hireling and also less than honest on his resume in a trial accusing drug makers of causing an epidemic.
“Would you agree that pseudoaddiction is a dangerous concept to sell (to doctors)?” Mimi Liu, the attorney for the state, asked during May 19 testimony.
“No,” responded Dr. Edward Michna, a pain management specialist for the Brigham and Women’s Hospital in Boston. “The concept is relevant.”
Pseudoaddiction, a term coined in 1989, is false drug addiction. A patient has pain that could be treated with opioids and exhibits drug-seeking behavior that is misinterpreted as addiction. Plaintiff attorneys claim the term is being used by the opioid industry to minimize the risk of the drugs.
The trial, being held in Kanawha Circuit Court for the state Mass Litigation Panel, is being streamed live courtesy of Courtroom View Network.
Opioid suppliers Teva, Cephalon (now part of Teva) and Allergen are accused of ignoring the addictive danger of opioid pills so they could increase their profits and causing an epidemic. The charges include creating a public nuisance and violating the West Virginia Consumer Protection and Control Act.
In 2019, West Virginia Attorney General Patrick Morrisey filed lawsuits against the drug manufacturers in the Boone Circuit Court. The case was subsequently moved to the Kanawha Court and is being heard in a bench trial with no jury. Swope is to decide the verdict.
Plaintiff attorneys claim the epidemic started in the 1990s when the medical community, in the beginning encouraged by a few "opioid revisionist doctors" and later supported by drug manufacturers and distributors; abandoned what had been a former tighter policy of prescribing opioids mostly for terminal and cancer treatments. Instead they alleged, backers of more opioids began to recklessly prescribe and promote the drugs for less serious conditions, describing pain as a fifth vital sign (as in a pulse).
Pain alone is not a vital sign, the state’s attorneys claim.
Anti-drug diversion in-house programs required of the companies by the DEA were ineffective, the attorneys contended. They maintained that addicts got their start using prescription opioids and then graduated to heroin acquired on the street or more recently fentanyl, when the prescription opioids became too expensive or hard to get.
Defense attorneys argue the epidemic was caused by societal problems, illegal drug abuse including heroin and fentanyl, and not by manufacturing companies legally supplying doctors and hospitals with the pain pills they prescribed.
Janssen, the drug subsidiary of Johnson & Johnson, settled with the state on April 18, agreeing to pay $99 million although company officials denied any wrongdoing. An additional defendant Endo also settled with the state in March for $26 million.
A suspicious drug order includes one that is larger in quantity than normal or more frequent ordering than normal.
During the May 19 session Michna agreed there is an opioid epidemic in the state.
“They are taking a huge toll on our population, correct?” Liu asked.
“Yes.”
Michna declined to say industry pressure has contributed to the problem or that nonprofit pain organizations like the American Pain Society were at fault.
Liu asked Michna if it was a true statement that opioid use and abuse have steadily increased.
“I would agree there is an increase in opioid abuse, but I didn’t say there was causation,” Michna said.
Liu exhibited Michna’s prior deposition testimony, saying it was a true statement.
“The opioid industry knew, that people addicted to opioids moved on to heroin and more dangerous drugs,” Liu said.
“I don’t know,” Michna repsonded.
“You agree that opioids become less effective the longer you’re on it, correct?”
“That’s correct.”
Liu exhibited a document that read, “These drugs are incompatible with a functional life.”
“That’s what it says,” Michna said.
“You agree opioids are addictive?” Liu asked.
“They can be,” Michna said.
Liu said Cephalon covertly used doctors including Michna and Dr. Scott Fishman, a cancer pain specialist at the University of California Davis, and funded them as speakers for opioids. She produced an industry letter that said, “Could we refer the media to you (Michna) to speak to the value of opioids?”
“That’s what it says,” Michna said.
Michna was shown a document that accused drug manufacturers of engaging in “deceptive practices.”
“That’s what it says,” Michna repeated.
Liu said Michna’s resume contained “errors and omissions.”
“I’m not sure what you’re referring to,” Michna said.
Liu said attorneys had attempted to contact a website Michna was purportedly involved with called the Pain Trial Center.
“We called your pain medical center,” she said. “We made every effort. They said they did not have anything called a Pain Trial Center. In your CD it says your are proud to be in the Pain Center. Nobody could tell us it exists.”
Liu also questioned Michna’s claim he was a teacher at Harvard Medical School.
"You said I’m a yearly invited lecturer, but you’re not listed on the Harvard Medical website,” she said.
“I don’t know,” Michna answered.
“You’re not listed.”
“I have no idea.”
Liu exhibited a 2013 letter to Michna from another doctor that said, “I appreciate the opportunity to work with you and quantify the value of hydrocodone (opioid).”
“The American Pain Society is heavily funded by Teva and Cephalon, correct?” Liu asked.
“I’m not privy to the funding,” Michna said.
Under cross examination Nancy Patterson the Teva attorney asked Michna if long-acting opioids were approved by the Food & Drug Administration.
“Yes,” Michna said.
Michna said the prescribing of opioids was an ongoing process that involved doing a risk assessment for each patient, and continuous monitoring with re-evaluations to see if the treatments were effective.
Regarding errors on the resume Patterson asked Michna if he was proud of his work in pain management.
“I’m very proud,” Michna said. "I’m recognized as an expert by state and federal government and the FDA. I have a respectability.”
Michna admitted there were a few errors in his resume, but indicated it was only a lack of updating the information by back-up staffers, and whatever was missing was not done on purpose. He indicated the Pain Medical clinic had not been active for a few years and that services had been restructured.
“It’s a research body. I’m not sure what it’s called there is some confusion there,” Michna said.
“You’re not here to testify that opioids are right for every patient?”
“Of course not,” Michna said.
“But they are right for some,” Patterson said. “When opioids are properly prescribed and managed, they are effective and rarely cause addiction.”
“That’s been my experience,” Michna said.
Closing arguments in the six-week-long trial begin next week.
