SCOTUS Likely to Favor Sackler’s

In recent years, the opioid crisis ravaged communities across the United States, leaving a trail of devastation in its wake. As the nation grapples with the consequences of this epidemic, the legal battle surrounding Purdue Pharma’s bankruptcy immunity has taken center stage. For better or for worse, this case has epitomized public sentiment surrounding the epidemic.

However, few focus on the actual legal details debated. This is a problem. When the public fails to understand the legal arguments at hand and jumps to bombastic rhetoric, the public misunderstands key perspectives.

The Supreme Court wasn’t deliberating over the morality of the Purdue Pharma or whether the bankruptcy settlement will truly serve the patients most afflicted. Instead, the matter brought forth was far more legally obscure: deliberating the interpretation of a catchall provision found in the federal bankruptcy code. The provision is used to ensure that bankruptcy settlements, once agreed upon, don’t fall apart on the basis of legal technicality. But you couldn’t tell that by the rhetoric heard in court.

Deputy Solicitor General Curtis Gannon, representing the United States government, argued against granting Purdue Pharma immunity from future lawsuits. Gannon emphasized the need for accountability and justice for the victims of the opioid crisis. He argued that granting immunity would undermine the legal system’s ability to hold companies accountable for their actions.

This argument first began when Trustee William Harrington felt the settlement reached in the New York federal bankruptcy courts didn’t represent the best interests of the patients affected by Purdue Pharma.

Yet, ironically, the way it played out in court, based on how the legal system reviews contested bankruptcy settlements, would appear seemingly illogical based on that rhetoric.

Gregory Garre, a former Solicitor General, represented Purdue Pharma. Garre highlighted the potential consequences of reneging on a bankruptcy settlement, including the erosion of public trust in the legal system.

That seems normal enough. But what’s more bizarre is who else Garre represented: the victims seeking justice. Garre, based on how the legal proceedings played out, represented both Purdue Pharma and the patients affected by the firm’s unethical corporate practices. He argued the bankruptcy settlement has an overall positive effect for both patients affected by the opioid epidemic and victims of deceiving marketing tactics.

This stance makes the government posturing and the bombastic rhetoric all the more questionable. Why were the litigants arguing over the morality of prescribing opioids given the risk of dependency and addiction when the legal matter at hand centered squarely on interpreting vague statutes in the bankruptcy code?

The answer to this question lies at the heart of the government’s strategy to litigate companies and perceived responsible parties in the opioid epidemic. The method has become so tried and true it has become a playbook.

1. Find a statute mildly related to the opioid epidemic and interpret in a way that implies culpability for the targeted entity.
2. Flood the media airways with articles moralizing the targeted entity’s role in perpetuating the opioid epidemic. Use insinuations to avoid any liability in directly assigning blame.
3. Repeat the same talking points in court regardless of the actual legal matter being deliberated upon.
4. Use the court verdict, whether or not favorable, to imply your stance of moralization was correct.
5. Rinse and repeat.

Nobody realistically believes Purdue Pharma is innocent in all of this. Their marketing tactics were deceptive and they manipulated clinical data to enhance their marketing campaigns. They owe billions to patients that went on to develop addictions and dependencies.

But bankruptcy court is not the means to achieve redress for these patients. As a physician who wrote an amicus brief on behalf of my patients representing in this class action lawsuit, I sat in on a hearing when the bankruptcy settlement was being deliberated in New York federal bankruptcy court.

Not a single litigant mentioned the patients. Not a single person brought up the lives affected. It was a money grab. I witnessed it firsthand. So I see the familiar hypocrisy in the government’s latest play. Bringing the matter to the Supreme Court won’t change the outcome. The bankruptcy settlement already assigns blame to the company and, accordingly, a payout structure.

Arguing that the settlement, which never intended to help the most vulnerable or disenfranchised, needs to be re-litigated, when it was never litigated properly in the first place, is flat out dishonest. The numerous hearings gave all litigants, the government included, ample opportunity to voice their concerns.

All parties signed and codified the bankruptcy settlement. However, once signed, a trustee only tangentially involved in the case somehow felt that the payout didn’t meet the depths of moralization that he felt appropriate, so he wielded his power to concoct more hysteria around the opioid epidemic and the targeted entities.

We see masses gathered around the Supreme Court, arguing for justice, not realizing the patients and Purdue Pharma are on the same side. The patients accepted the terms because that was the best they were offered. Why didn’t the government step in before the settlement was reached? Why argue a vague esoteric provision that has little chance of passing muster in the Supreme Court?

The answer is as disillusioning as it is revealing: many in positions of political power use the legal system to advance a political ideology. To defend the Sackler family is heresy. The public knows that. And those in positions of power know the public knows that.

But there’s a difference between beating someone already accused and convicted and seeking justice for those affected. Apparently the federal government doesn’t realize that such a distinction exists.

The Supreme Court is likely to uphold the bankruptcy settlement by a slim majority. Once the ruling comes out, it’ll galvanize outcries about the corruption in the Supreme Court. Few will pay attention to the fact that the court was assigned to analyze one specific provision in the bankruptcy code. Even fewer will care once they’re told that.

The allure of moralization is far too strong. And those in a position to know better and to do better for patients see more value in exploiting this sentiment than truly seeking justice and increasing access to clinical care.