On Sunday's episode of the 5 things podcast: The opioid crisis has resulted in over 600,000 needless deaths. Who is to blame? Many say the Sackler family, who took in billions in profits from drug sales through their company Perdue Pharma. The Supreme Court is now weighing in on that. In August, SCOTUS blocked a $6 billion opioid settlement that would have shielded the Sackler family from civil claims. The court will take up the case and hear arguments this December. USA TODAY Supreme Court Reporter John Fritze joins the 5 Things podcast to discuss the implications for both drug makers and victims.

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Dana Taylor:

Hello, and welcome to 5 Things. I'm Dana Taylor. Today is Sunday, October 15, 2023. The opioid crisis has resulted in over 600,000 needless deaths. Who's to blame? Many say the Sackler family who took in billions in profits from drug sales through their company Purdue Pharma. The Supreme Court is now weighing in on that. In August, SCOTUS blocked a $6 billion opioid settlement that would've shielded the Sackler family from civil claims. The Court will take up the case and hear arguments this December. Either way, the case has big implications for both drug makers and victims. USA Today Supreme Court reporter John Fritze joins us now to give his perspective on the issues. John, it's good to have you here.

John Fritze:

Hi Dana.

Dana Taylor:

Let's start with the families of opioid victims. You spoke recently with two families who happened to be diametrically opposed on the issue of whether or not the Sacklers should be liable for their role in the opioid crisis. Tell me about them.

John Fritze:

Think about a 13-year-old kid who lost an only parent, let's say, to the opioid crisis, not in the position to sue today given their age, but maybe in five years. Can the Sackler family be sued in five years for future liability for those kinds of claims? That's really what's at issue here in this Supreme Court bankruptcy case. I spoke with two moms, actually, who both lost sons within a few months of each other. They were both around the same age. To me, it really illustrates some of the difficult issues and difficult choices for the Court hear.

One mother that I spoke to, Ellen Isaacs, thinks that this deal doesn't go far enough, that the Sackler family should be held more responsible, that they should be held liable for those claims in the future. Another mom that I spoke with, Lynn Winkas, agrees that she wishes that the Sacklers faced more liability, but she thinks that this is maybe the best that the families can get, that the deal does way more good than harm. That's partly because in exchange for this release of liability, the Sacklers will pay up about $6 billion, as you noted. A lot of that money is going to go to victims and their families, but it's also going to go to states for treatment and abatement of opioids. Lynn Winkas told me that she feels like this could be a legacy for her son. No amount of money brings her son back, but that if some of this money could be used to save additional lives, that that would be worth it.

Dana Taylor:

Well, Purdue Pharma is now in bankruptcy, but that was after the Sacklers took out $11 billion in profits. What was agreed to during the bankruptcy restructuring? Why did the Biden administration ask the Supreme Court to put that settlement on hold?

John Fritze:

Purdue Pharma filed for bankruptcy in 2019, and through a series of court cases and negotiations essentially came up with this $6 billion deal. Now, I want to be careful here. The $6 billion only applies to what the Sacklers are going to cough in, there's other money involved. But, should they be off the hook in exchange for this $6 billion? That's really the main issue here. The victims get a piece of this money, so they get somewhere between about $3,500 and $40,000 depending on how closely impacted they were by the opioid crisis. Then, states get a large share of this money to use for treatment and opioid abatement. That's really the contours of the deal. In the Justice Department, there's this interesting figure, a trustee. This person's job is to look out for the interests of the people involved in the case. William Herrington, who's the trustee in this case, has decided that he doesn't like these releases, these so-called third party releases, and that is the grounds on which he has brought this challenge to the Supreme Court.

Dana Taylor:

What was the role of Purdue Pharma in the opioid epidemic, just in terms of product development, distribution, and really marketing?

John Fritze:

The first wave of the opioid crisis really begins in the 1990s, and it really coincides with the marketing and production of Oxycontin, which Purdue Pharma rolls out in 1995. At the time, it was considered sort of a miracle drug for pain relief. Part of how Purdue marketed this drug was to talk about its time release. The idea was that because the drug released in your body over time, that it perhaps wouldn't be as addictive. It wouldn't be as prone to misuse as other opioids that had been used in the pharmaceutical space for some time. That obviously proved to not really be true. The issue for the Sacklers and for pharma is that, even when the company realized that they had a problem, they continued to talk to regulators and to doctors about this time release and continued to suggest the drug might not be as addictive as it turned out to be.

The other critical piece of this component of it is that Purdue realized that the drug wouldn't be as profitable if it was only marketed to, say, end of life cancer patients who are dealing with pain. In other words, they saw a market far beyond people dealing with chronic pain and end of life patients, and really marketed the drug toward sports injuries and back injuries and more acute, maybe even mundane, you could say, injuries. That was a real part of the problem too.

I talked to these families and they both talked about, even though they are on opposite sides of this case, they have a lot of things in common. One of the things that they talk about is, look, these drugs were prescribed by doctors and they trusted the doctors. They thought, "Well, look what can go wrong with this? This is what the doctor has suggested." Of course, we sort of know what happens. It turns out that not only are these drugs addictive, but as they become hard for these patients to get, they end up looking for opioids in other areas, and chiefly that becomes heroin. A lot of these people that get hooked on these drugs through prescription pills end up turning to the illegal drug market after the fact to maintain opioids in their system. That is a big part of the reason for the high degree of deaths that surrounded this drug.

Dana Taylor:

Let's pivot to the ethical implications here. To say the Sackler family is wealthy would be an understatement. Some of the families of opioid victims have shared their disgust that the Sacklers made so much money off of a drug that was so deadly. Are there any precedents that the Court may consider in evaluating whether or not the Sacklers can be held personally responsible?

John Fritze:

It's not really Supreme Court precedents. Where this really is sort of born out of, where this all comes from is the asbestos cases in the 1980s where, similarly, you had companies producing this product, they were causing a lot of people to get ill. The company goes bankrupt, and what they're really trying to do is deal with this issue of future claims. You have somebody who is sick from asbestos today but may not know it yet, they may not be showing symptoms, they haven't been diagnosed, and you want to do a bankruptcy deal right now. How do you deal with that person who isn't yet showing symptoms, who in five years may have a claim?

What happens in the asbestos litigation is the companies decide to create these trusts. They set these trusts aside. A lot of third parties put money into these trusts, and this is where future claimants are supposed to go. If they get sick five years after the deal, they're supposed to go to this trust, and in exchange, they're absolved from future civil liability. You see it in bankruptcy case after bankruptcy case. Silicone breast implants is another one where this comes up. Faulty airbags is a case where similar method was used.

The Boy Scouts right now are currently going through bankruptcy litigation where this sexual abuse scandal where the same approach is being used. I don't know that there's a Supreme Court case precedent that's directly on point with this, but I do think this is a practice that's been going on for some time in a lot of spaces. Depending on how the Court rules, if the Court shuts down this settlement, it could really have a big impact on bankruptcies generally and other major cases involving companies where a lot of people have been harmed.

Dana Taylor:

Some people argue that the Sackler family's philanthropic donations have been used to whitewash their reputation. Have any donations been refused or returned?

John Fritze:

The main space where the Sacklers were spending money that I think most Americans would be familiar with is in the art space. I remember going to the Metropolitan Museum of New York and seeing the pyramid there, which was in The Sacklers Wing. A lot of these art museums have since not only stopped taking Sackler money, but have taken their name off the various projects. The Met took the Sackler's name off the wing I think in 2021. Tate, Guggenheim, museums across the world are either declining to take this money in the future or are removing the Sackler's name. A lot of these museums, of course, faced pretty heavy public pressure to do so, including protests at the museums themselves.

Dana Taylor:

Well, the Supreme Court's decision to temporarily block the Sackler family settlement had no dissents. Is there any way to know which way the Court may go here?

John Fritze:

It's always a little dangerous to guess, although this one, I think it's a little easier to guess. The reality is that there's nothing in bankruptcy law that allows courts to absolve third parties from future liability. This is a court that's really big on what's called textualism. That's the idea that you read the statute, you read the law for what it says, and you don't read things into the law. They do this in all sorts of spaces. It's a little different, but you can make the same case for why they overturned Roe v. Wade. There's nothing in the Constitution that explicitly talks about abortion. This is sort of applying similar logic here. There's nothing in the statute that talks about absolving third parties, except for in the asbestos case. There is a specific carve out for asbestos and nothing else.

I think you could look at the non-dissents in the emergency order, that's one thing to look at. But, you can just look at the fact that I think the groups here have a real challenge to overcome on the text of the law. Whether that's enough to persuade five, which is what they need, I don't know. But, I do think that probably the settlement walks into court as an underdog and has the most work to do to try to preserve the settlement. Then the question is, if the settlement is ruled out, what happens then? It's really unclear.

Dana Taylor:

We'll be watching in December. John, thank you so much for joining us.

John Fritze:

Thank you.

Dana Taylor:

Thanks to our senior producer, Shannon Rae Green, for her production assistance. Our executive producer is Laura Beatty. Let us know what you think of this episode by sending a note to [email protected]. Thanks for listening. I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of 5 Things.