The top law enforcement official in New Hampshire, a state ravaged by the opioid epidemic, accused the manufacturer of OxyContin on Friday of stonewalling demands for information the company collects about suspected criminal trafficking of its painkiller.
"They are just refusing to turn over documents," state Atty. Gen. Joseph Foster said of drugmaker Purdue Pharma in an interview. "On one hand, they tell us they have nothing to hide and they are doing everything appropriately, but then why are they fighting so hard not to turn over this information?"
After a Times investigation last month exposed the extensive evidence Purdue's internal security team gathers, and in many cases, does not share with law enforcement, state lawyers sent a subpoena directing the company to turn over any records related to New Hampshire. The Times found that the company's confidential files include field reports, witness statements, prescribing data and surveillance photos on doctors and pharmacists across the nation suspected of catering to addicts and drug dealers.
In refusing to comply with the New Hampshire subpoena, Purdue cited longstanding objections to the state's use of a private law firm in an ongoing investigation of the company and other opioid makers.
In court documents, company lawyers have said Purdue is willing to provide records to the attorney general and his lawyers, but on the condition they not share them with the private attorneys, who they have suggested have a financial incentive to wrest multimillion-dollar judgments from the company in civil suits.
"The Attorney General has repeatedly refused to accept the information we've offered to provide," the company said in a statement.
James Boffetti, the senior assistant attorney general negotiating with Purdue, said he had agreed to limit access to the materials to government lawyers and investigators unless there was court approval of the use of private lawyers. But, he said, the company still declined. The conversations were "very frustrating," he said, arguing that the information the state sought could help police identify criminal activity and stop prescription drugs from getting into the wrong hands.
"It's just a knee-jerk response that doesn't look at the bigger issue of public safety and harm," Boffetti said.
New Hampshire, with a population of 1.3 million, has one of the nation's highest rates of opioid prescribing and addiction, according to public health officials. Many addicted to painkillers have transitioned to abusing heroin, which is cheaper than pills, and overdoses and deaths have skyrocketed in recent years. A state report this summer called the opioid problem "one of the most significant public health crises" in the state's history. There were 666 emergency room visits for opioid-related causes last month and, on average, nine people fatally overdose on drugs each week, according to state figures.
Government officials are fighting the crisis on many fronts, from outfitting police officers with naloxone, an anti-overdose drug, to starting new educational programs that begin warning children in kindergarten about the dangers of drugs. Foster said that after he took office in 2013, he was struck by the number of pills seized in raids on rural drug rings and decided to launch an investigation into whether fraudulent marketing of the drugs was contributing to their abuse.
The state has just a handful of attorneys to handle all consumer protection cases — from mortgage fraud to charity scams — and those lawyers are so busy that they rely on volunteers to take complaints. Foster decided to get outside help in the opioid investigation from a Washington, D.C., law firm, Cohen Milstein Sellers & Toll, that was already assisting the city of Chicago and two California counties sue drugmakers over the costs of the epidemic.
With the firm's help, the attorney general's office subpoenaed records from Purdue and four other drug companies related to the marketing of painkillers. But the companies fought the subpoenas, with their lawyers arguing that Cohen Milstein had "prejudged the merits of the investigation" and was "unduly influenced by the huge financial incentives" in a contingency arrangement that gave the firm 27% of a monetary judgment.
The companies repeatedly said they would produce the documents — potentially millions of pages — if they weren't shared with the outside lawyers. The attorney general's office saw this as an empty offer.
"We don't have the technical tools to process huge volumes of discovery or the lawyers you would need to review it," Boffetti said. "They knew that."
Courts have ruled that public agencies may use outside lawyers on a contingency basis as long as there are safeguards to ensure government officials remain in charge of the cases. Still, corporations have continued challenging their role. In New Hampshire, the legal wrangling over the private lawyers has gone on for a year. This spring, the state replaced the contingency agreement with the law firm with a flat-fee arrangement and decided to focus its investigation, at least initially, solely on Purdue. A Superior Court judge ruled earlier this month that the arrangement is permissible, but Purdue is currently appealing to the state Supreme Court.
David Vicinanzo, an attorney for Purdue, said in a statement that the state's hiring of an outside firm raised "a very serious issue about whether it is proper for government enforcement powers to be privatized to outside counsel with a special financial interest."
In July, The Times reported on the cache of evidence Purdue has about suspected criminal activity, using as an example an L.A. drug ring that the company did not report to authorities for years. The ring sent 1.1 million pills onto the black market. State lawyers in New Hampshire quickly sent a subpoena to Purdue.
"If we have those kind of things in our state, we would like to be able to take action on them," Foster said.
Lawyers for Purdue filed a motion this month asking a judge to throw out the subpoena on several grounds, including the involvement of Cohen Milstein.
Citing The Times' report, Foster and District of Columbia Atty. Gen. Karl Racine also asked the Drug Enforcement Administration last week to reduce national production quotas for oxycodone, the active ingredient in OxyContin, by a quarter. Under federal law, the DEA sets the amount of a controlled substance a manufacturer is allowed to produce.
"It makes little sense to entrust a manufacturer, such as Purdue, with an authorization to produce, and profit from, a narcotic drug when, seemingly, it is not meeting its legal obligations to report" abuse, they wrote.
A DEA spokeswoman said the agency "appreciates their concern on this vital subject. We take the quota-setting process very seriously and strive to provide for the country's legitimate needs while also preventing the diversion of these potentially harmful medications."
Purdue declined to comment on the letter.