A federal jury will be able to hear from a doctor who spent decades advocating for broader use of powerful prescription painkillers before turning against the opioid industry.
A special court master had ruled earlier this month that the testimony of Dr. Russell Portenoy, a professor at Albert Einstein College of Medicine in New York, would not be allowed at the first federal trial against drugmakers over the toll of opioids. The reason was that attorneys representing the local governments suing the industry had failed to disclose for nearly a year that Portenoy was cooperating with them.
But Dan Polster, the Cleveland-based judge overseeing more than 1,500 federal cases filed by local governments, American Indian tribes, unions and others against the opioid industry, ruled that blocking Portenoy’s testimony from an initial trial was too “extreme” a punishment. He also noted that the plaintiffs’ attorneys had previously shared more than 100,000 Portenoy documents during discovery for the case.
In his ruling Friday, Polster said the plaintiffs would have to pay the drugmakers’ cost to take a deposition from Portenoy and up to $100,000 for any needed follow-up depositions.
The special court master, David Cohen, had said that Portenoy’s testimony should be barred from the trial scheduled to begin in October on claims brought by Ohio’s Summit and Cuyahoga counties, but would be allowed at any additional trials. Polster said the testimony will be allowed at all the trials.
Hunter Shkolnik, a lawyer for the local governments, said Portenoy’s testimony would help the case against Purdue Pharma and other drug companies.
“Judge Polster recognized that the jury and the public should have the opportunity to hear Dr. Portenoy say in his own words that both he and Purdue were wrong and that led to this epidemic,” he said.
Purdue did not immediately comment on the ruling.
Polster is pushing the parties to reach a settlement to address the nationwide opioid addiction and overdose crisis.
The U.S. Centers for Disease Control and Prevention says the class of drugs, including prescription painkillers such as OxyContin and illicit drugs including fentanyl and heroin, were involved in a record 48,000 deaths in the U.S. in 2017 — more than in vehicle crashes. Since 2000, the drugs have been linked to 391,000 deaths.
Lawyers representing the governments say “opinion leaders” such as Portenoy were a key reason for the shift in prescribing philosophy.
Portenoy was publishing findings to support expanding opioids’ use to combat chronic pain as far back as the 1980s. For a time, he served as president of the American Pain Society, an organization that was heavily funded by drugmakers.
Portenoy and other doctors who advocated more liberal use of opioids were named as defendants in scores of the cases the governments have brought against the drug industry. Even before he agreed to work with plaintiffs, Portenoy had said publicly over the last several years that there is a significant risk of addiction to prescription opioids.
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