Nearly 2,000 cities, towns and counties across America are currently participating in a massive multidistrict civil lawsuit against the opioid industry for damages related to the abuse of prescription pain medication. The defendants in the suit include drug manufacturers like Mallinckrodt, wholesale distributors McKesson and Cardinal Health, and pharmacy chains CVS and Walgreens.
Evidence related to the lawsuit was initially sealed, but The Washington Post and the Charleston Gazette-Mail successfully sued to have it made public. Pulitzer Prize-winning Washington Post journalist Scott Higham says the evidence, which was released in July, includes sworn depositions and internal corporate emails that indicate the drug industry purposely shipped suspiciously large quantities of drugs without regard for how they were being used.
Higham says one sales director at the pharmaceutical manufacturer Mallinckrodt was jokingly called "ship, ship, ship" by colleagues because of the amount of oxycodone and hydrocodone he sold: "His bonus structure was tied to the amount of sales that he made," Higham notes. "And that was a time when there was no secret about how many people were dying in places across the country, and the opioid epidemic was raging."
Higham and his colleagues at the Post were also able to access data from the Drug Enforcement Agency that trace the path of some 76 billion opioid pain pills sold between 2006 and 2012. In analyzing the movement of those pills, they made a gruesome discovery.
"When you line up the CDC death [by overdose] database with the DEA's database on opioid distribution, you see a clear correlation between the saturation of towns and cities and counties and the numbers of deaths," Higham says. "A lot of these towns and cities, small cities and counties in places like Ohio and Pennsylvania have just been devastated. ... The death rates just soared in those places where the pills were being dumped."
On the picture emerging from recently unsealed DEA database
A lot of people thought they knew that their communities were being saturated by these opioids, but I don't think they really knew the extent of the saturation, and who was responsible. So this database pulls the curtain back on that for the first time. We obtained data that goes from 2006 through 2012. So over that seven-year period ... you can see exactly which manufacturers were responsible, which distributors were responsible, and which pharmacies were responsible. And we took that database and we turned it into a usable, public-facing database, so now anybody in the country can go onto our website and they can see exactly what happened in their communities. ...
Dozens and dozens of local news organizations have done stories about their own communities — which companies flooded their communities with pills, which pharmacies were responsible for dispensing the most tablets of oxycodone and hydrocodone. Those are the two drugs that we looked at, because they are the most widely abused drugs by addicts and by drug dealers.
On the communities that were flooded with opioids
It's just heartbreaking to see these once thriving communities. They're almost like zombielands, where people are just walking around in a daze and picking through garbage cans and falling down, and overdosing in public parks and inside of cars and inside of streets and on street corners. It's a very upsetting scene that's happening. ...
These communities need help — desperately need help. Their hospitals need help. Their foster care agencies need help — because so many parents have perished and their kids have no family or [are] being raised by grandparents. Police departments, paramedics, fire departments that used to fight fires all the time now are fighting against the opioid epidemic and carrying Narcan with them, which is an overdose reversal drug, and "Narcaning" people all day long.
On how drug distributors generated billions in revenue from the opioid epidemic
They're making massive amounts of money. Many of them are Fortune 500 companies. In fact, the No. 1 drug distributor in America, McKesson Corp., is the fifth-largest company in the United States — fifth-largest of all companies in the United States — and it's a company that most people have never heard of. And they are a huge, huge player in this world, and of the distributors that sent these drugs downstream they were No. 1. And they were followed by two other companies that a lot of folks probably have not heard of. One is called AmerisourceBergen and another is called Cardinal Health. ... Together those three companies are the three biggest drug distributors in the United States. And they were followed by Walgreens, CVS and Walmart as the top six drug distributors in the United States.
On "pill mills" that popped up in Florida, where people could get opioids from corrupt doctors — and then resell them on the street
All of a sudden, all these drug dealers realize that there was another way to peddle these pills, and they began to open up these so-called pain management clinics, and most of them were in South Florida, heavily concentrated in Broward County, which is where Fort Lauderdale is. ... These things ... were basically storefront operations in strip malls where you had corrupt doctors and rogue pharmacists working hand in hand inside of a store. So on one side of the store you'd come in, you'd get a cursory examination, the doctor would write you a script. And you literally go next door and get it filled. And these places just became huge open-air drug markets. The parking lots were filled with people who were driving down from Kentucky and West Virginia and Ohio to pick up their prescriptions. And along the highway that goes up through Florida, I-75 and then also I-95, a lot of these storefronts began putting up billboards along the highway at exit ramps saying, "Pain management clinic, next exit."
On the Justice Department's history of fining drug companies instead of filing criminal charges
[Investigators at the DEA's Office of Diversion Control] started to see a pattern, and it's a pattern that they see that continues to this day, that there are people within the Justice Department who are not very aggressive when it comes to these cases. They feel that some of them are a little too close to the industry; that maybe some of the people in the Justice Department want to work for the industry one day, so they don't go as hard against these companies as perhaps they should. ... If you take a look at the revolving door between the Justice Department, the DEA and the drug industry, it's a very impressive revolving door. You have dozens and dozens of high-ranking officials from the DEA and from the Justice Department who have crossed over to the other side and they're now working directly for the industry or for law firms representing the industry. So if you're a DEA investigator or a DEA lawyer or a Justice Department lawyer making $150,000 a year, you cross over and you can triple, quadruple your salary overnight.
Amy Salit and Seth Kelley produced and edited the audio of this interview. Bridget Bentz and Deborah Franklin adapted it for the Web.
DAVE DAVIES, HOST:
This is FRESH AIR. I'm Dave Davies, in for Terry Gross, who's off this week. Close to 300,000 people have died in the U.S. from prescription opioids in the past 20 years. A massive database kept by the Drug Enforcement Administration recently made public tracked the path of every single opioid-based pain pill sold in the U.S. between 2006 and 2012. It shows that 76 billion pills were sent out by the country's largest drug companies during that time.
The database and additional documents from the nation's largest drug companies were unsealed last month due to a lawsuit won by The Washington Post and the Charleston, W. Va., Gazette-Mail. Internal drug company emails also released as part of the lawsuit reveal an apparent willingness to ship suspiciously large quantities of drugs to some communities without regard for how they were being used or abused.
Our guest, Washington Post reporter Scott Higham, has been digging into the data and learning which companies shipped the most opioids and where they landed. Higham is an investigative reporter who's been at the Post since 2000. His awards include the Pulitzer Prize for investigative reporting, the George Polk Award and an Edward R. Murrow Award for a joint investigation with "60 Minutes."
Scott Higham, welcome to FRESH AIR. An enormous amount of detailed information here. It comes from a lawsuit, a civil case. Tell us who's suing whom. What's this about?
SCOTT HIGHAM: Well, there are about 2,000 cities and towns and counties that are suing the opioid industry. There's about two dozen companies that are standing trial. These cases were pending all across the country in federal courts, and they were consolidated into one massive multidistrict litigation case, it's called. It's a complex litigation, and it is based in Cleveland, Ohio.
And the judge presiding over that case wanted to get a settlement between the parties, and he decided to seal all the exhibits, close down the courthouse and not allow the public to monitor any hearings or see any of the filings 'cause he thought that that was a way that he could get the parties to negotiate a settlement.
About a year ago, we interceded in that case, and we filed a lawsuit for access to a database that the DEA keeps that tracks the path of every single pill that goes throughout the United States, from manufacturer to distributor to pharmacy. And we also sued for access to all of the exhibits and depositions that were taken in the case so that the public could see what was happening.
DAVIES: Right. And I guess you lost at the trial court level. This judge denied your request. You took it to an appeals court and prevailed there, right?
HIGHAM: Correct. We appealed to the 6th Circuit in Ohio federal appeals court, and that appellate court sided with The Washington Post and also with the Gazette-Mail in Charleston, W. Va. We both sued for access to this material.
DAVIES: Right. Now, the drug companies and their attorneys resisted the disclosure of this information. I guess that's not surprising. But also, the federal Drug Enforcement Administration - the DEA - also opposed the release. Why?
HIGHAM: Well, they - you know, they all fought furiously for secrecy over this data - the industry, for obvious reasons, and the DEA, I think, because it was embarrassing to the agency that they had all of this information. And they made some use of it, but they didn't make a whole lot of use of it. They used it to make a bunch of cases, but it shows what the DEA at the highest levels knew about this epidemic and didn't take a lot of action.
Meanwhile, there is a division within the DEA that is a little backwater operation called the Diversion Control Division. And that is staffed by not a lot of investigators who work very, very diligently and hard trying to pursue prescription drug cases. And those cases are just not a priority. They haven't been a priority at the DEA. And I think that the DEA - you know, they focus, you know, heavily on drug trafficking cases, cocaine, marijuana - you know, the big headline cases. These cases, for many, many years, were not really given a priority. So the DEA fought very, very hard against the disclosure of this information.
DAVIES: Did you say diversion cases? That's the category here.
HIGHAM: That's the category, yeah. It's a diversion of legitimate prescription drugs to the black market to the street. And so there are not a lot of agents and investigators assigned to those cases. The ones that were assigned to those cases were incredibly hardworking. They brought lots of cases against the industry. But they didn't get a lot of support from the upper management of DEA.
DAVIES: Right. OK. So this database tracked every single opioid-based pain pill shipped over a seven-year period. The number was 76 billion, right?
HIGHAM: That's correct.
DAVIES: Give us - yeah. Give us some context. What was useful about the data and seeing where all those pills went?
HIGHAM: Well, you know, I think a lot of people thought they knew that their communities were being saturated by these opioids, but I don't think that they really knew the extent of the saturation and who was responsible. And so this database pulls the curtain back on that for the first time.
We obtained data that goes from 2006 through 2012 - so over that seven-year period, like you said, 76 billion pills. And you can see exactly which manufacturers were responsible, which distributors were responsible and which pharmacies were responsible. And we took that database, and we turned it into a usable public-facing database. So now anybody in the country can go onto our website, and they can see exactly what happened in their communities.
DAVIES: And other journalists can use it to develop stories in - about their communities.
HIGHAM: Exactly. And lots of journalists across the country have been doing that. In fact, we just had a piece run recently that show that dozens and dozens of local news organizations have done stories about their own communities - which companies flooded their communities with pills, which pharmacies were responsible for dispensing the most amount of tablets of oxycodone and hydrocodone. Those are the two drugs that we looked at because they are the most widely abused drugs by addicts and by drug dealers.
DAVIES: And when you looked at the data on a county basis, where you can also look at overdose death rates, did you find a correlation?
HIGHAM: We did. Our database editor Steven Rich, who took this database after we won access to it and turned it into a public-facing database, took that database, and he overlaid a database from the CDC. It's a mortality database. And when you line up the CDC death database with the DEA's database on opioid distribution, you see a clear correlation between the saturation of towns and cities and counties and the numbers of deaths. The death rates just soared in those places where the pills were being dumped.
And if you go into some of these places - and I have gone into a number of them with my partner on the story, Sari Horwitz - a lot of these towns and cities, small cities and counties in places like Ohio and Pennsylvania have just been devastated. It's just heartbreaking to see these once thriving communities. They're almost like, you know, zombie lands where people are just kind of walking around in a daze and picking through garbage cans and, you know, falling out and overdosing in public parks and inside of cars and inside of streets and, you know, on street corners. It's just - it's a very upsetting scene that's happened in a lot of these communities.
DAVIES: Now, there's two big categories of companies that you describe here. There are the manufacturers. And you show that the database shows three manufacturers made 88% of the pills. And then there are distributors. And six of them made about three-quarters of them that were sold. Explain a little bit about the roles of these companies and what was going on here.
HIGHAM: So the way it's supposed to work - this is supposed to be a closed supply chain. And the supply chain begins with the manufacturers at the very top. In the middle are the distributors - they're the middlemen - and at the retail level are the pharmacies. And so anytime anybody sees a suspicious order - and that would mean, you know, an order that was really large, compared to previous orders - they're supposed to flag that order. They're supposed to investigate that order and make sure that there are legitimate reasons for, all of a sudden, a pharmacy that got 10,000 pills one month is now ordering 30,000 the next month. They're supposed to take a look at that and say, well, why is that? And if they...
DAVIES: And that's a legal obligation, right? That's...
HIGHAM: That was a legal obligation. That is correct.
DAVIES: Controlled Substances Act. Yeah.
HIGHAM: Correct. And there's a federal appeals court ruling, as well, that adds some more specificity to that. And so a lot of these companies were not reporting those suspicious orders to the DEA as they were required. They continued to ship them.
And so what this data shows is who was responsible for manufacturing the vast majority of those pills. And, you know, you would think it would be Purdue Pharma because that's the company that has gotten the most attention over the years. But it's not Purdue Pharma. It's a company called SpecGx, which is a company that we had never heard of. It's a subsidiary of a company called Mallinckrodt, which is a huge manufacturer of drugs. And they made the most amount of the pills.
And then there's a couple of other companies that the general public has probably never heard of. Actavis, they made - they manufactured 26 billion pills. And then pharmaceuticals manufactured 12 billion pills. And the SpecGx, the top manufacturer, manufactured 28 billion pills. So those, you know, those companies, you know, manufactured the vast majority of the pills that were distributed during that seven-year period.
DAVIES: One of the things that - you know, it's interesting, as you look at the stories and some of the exhibits that you examine, the drug companies say, well, look, the DEA had all this information. It was their database. If there were problems, they should have seen it. Do they have a point?
HIGHAM: Well, yes and no. They did see it. The men and women who work in the Diversion Control Division - which, again, is that little backwater operation at the DEA - did see these massive shipments in the database. And they alerted the companies numerous times. They started to alert them in the mid-2000s. They sent letters out to every distributor and manufacturer in America in 2005 and 2006. And they warned them and said, you know, we're seeing a lot of pills flowing downstream, and we want to make sure that you understand what your responsibilities are and the federal law, and if you have received suspicious orders of narcotics from your customers, you have to report those to the DEA and stop those shipments.
So they were using that, but that office is so understaffed. These cases are incredibly complex. They take a long time. From the beginning of the investigation to actually bringing a civil case, it can take up to two years for just one case to proceed through the system.
So they were using this database, which is called Arcos. But I think that, you know, that if you talk to the people who are in that Diversion Control Division at the DEA, they would tell you that they didn't get the resources, that the database was kind of a mess, that the leadership of the DEA was not really interested in the prescription drug problem, they were more focused on domestic and international drug trafficking.
So it was being used. But, you know, the industry has tried to lay blame in lots of different places. You know, one place is blaming the DEA for not doing its job. They've also blamed people for misusing these painkillers. And they have also said that it's not really their responsibility, once these drugs leave their warehouses, that they've done their due diligence and it's up to somebody else to take care of the problem.
DAVIES: Scott Higham is an investigative reporter for The Washington Post. We'll continue our conversation after a short break. This is FRESH AIR.
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DAVIES: This is FRESH AIR, and we're speaking with Scott Higham, an investigative reporter for The Washington Post. He's written extensively about the opioid crisis for several years and is part of a team that's developed stories from a federal database of all the opioid-based pain pills shipped by American drugmakers over a seven-year period. That data was secured when the Post and another newspaper filed a lawsuit for access to the information.
For the pharmacies themselves who were distributing these pills, you know, to people with prescriptions, did you find that the misconduct was concentrated in a relatively - in a minority of pharmacies, or was this a widespread problem?
HIGHAM: It was a widespread problem. And, you know, it spans, you know, the biggest names in the pharmacy business - CVS, Walgreens, Walmart. I know people don't think of Walmart as being a pharmacy, but they have huge pharmacy operations inside their stores. And it went all the way down to the little mom and pop operations in towns and counties across the country.
You know, there are some where you look at, and they did not dispense that much. There were pharmacies and pharmacists who were doing their due diligence. And when they saw people coming in who were clearly addicted or were coming in with prescriptions that looked like they were not legitimate, they paid attention to that, and they did not fill those prescriptions. Others just looked the other way, and a number of the pharmacies have gotten into trouble with the DEA because of that over the years. So Walgreens has been fined. CVS has been fined.
And the DEA has also gone after a lot of the distributors for sending these pills downstream to these pharmacies, to their customers without doing their due diligence. So there are failures up and down the line.
DAVIES: You know, besides the data that was generated when these materials were released, there were the exhibits in this massive lawsuit against the drug companies, and that's lots and lots of drug company internal emails and depositions where the players have to sit and answer questions under oath about their actions. And let's look at some of what emerged from all that material. There were some particularly cynical exchanges in emails among pharma executives. Some stand out to you?
HIGHAM: Absolutely. There's almost too many of them to count. And every day, more and more documents are getting unsealed because of the lawsuit that we filed along with the Gazette Mail in Charleston. So it's really kind of peeling back the layers of what was going on inside of these companies.
But I guess, you know, one of the ones that really stands out and has got a lot of attention is a national sales director for Mallinckrodt, a big manufacturer, who was exchanging emails with one of his customers, KeySource, which was a distributor in Ohio. And the KeySource sales rep, you know, said, you know, send me more of these drugs. And he said, you know, it's almost like they're addicted to these things. Oh wait, they are. And he said in response just like Doritos. Keep eating. We'll make more.
And his title at - when he was at Mallinckrodt, his unofficial title that all of his coworkers jokingly called him ship, ship, ship. And he did ship a lot of oxycodone and hydrocodone. That was his job. And his bonus structure was tied to the amount of sales that he made. And that is something that happens throughout the industry.
And so, you know, when we first reported about this email exchange and other things within that company involving this guy, the company issued us a statement said that this is outrageous. It's a callous email from an individual who has been not been employed by the company for many years, and it's antithetical to everything that Mallinckrodt stands for and has done to combat the opioid abuse and misuse. But what Mallinckrodt didn't say in that statement, and it has come out in these documents that are now being unsealed, is that while this national sales rep was at Mallinckrodt, he received a $26,000 bonus in 2006. And then four years later, his bonus quadrupled, and he got a $110,000 bonus in addition to his salary.
So, you know, they can distance themselves from him today, but they certainly weren't distancing themselves from him back in the day at the height of the opioid epidemic. And that was a time when, you know, there was no secret about how many people were dying in places across the country. And the opioid epidemic was raging while he was shipping and saying just like Doritos, you know, we'll just make more.
DAVIES: And it struck me. When I read about his bonuses, that he's getting a $26,000 bonus, a $100,000 bonus at a time when the companies are generating billions in revenue. This is, relatively speaking, crumbs.
HIGHAM: Yeah, it's, you know, they're making massive amounts of money, you know, all these companies there. Many of them are Fortune 500 companies. The - in fact, that the number one drug distributor in America, McKesson Corporation, is the fifth largest company in the United States, fifth largest of all companies in the United States. And it's a company that most people have never heard of. And they are, you know, they are a huge, huge player in this world.
And of the distributors that sent these drugs downstream, they were number one. And they were followed by two other companies that a lot of folks probably have not heard of. One is called AmerisourceBergen, and another is called Cardinal Health. And those together, those three companies are the three biggest drug distributors in the United States. And they were followed by Walgreens, CVS and Walmart as the - those are the top six drug distributors in the United States.
DAVIES: Of these pills, right?
HIGHAM: Of these pills, of hydrocodone and oxycodone.
DAVIES: Scott Higham is an investigative reporter for The Washington Post. After a break, he'll talk about pain management clinics that popped up in South Florida and effectively became open-air drug markets and about why some DEA investigators believe their enforcement efforts were thwarted by drug industry lawyers and lobbyists. Also, Maureen Corrigan reviews a book of essays she says are perfect to take on your next trip into the woods. I'm Dave Davies, and this is FRESH AIR.
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DAVIES: This is FRESH AIR. I'm Dave Davies, in for Terry Gross, who's off this week. We're speaking with Washington Post investigative reporter Scott Higham about new information that illuminates the growth of the opioid crisis. A newly released federal database tracked every opioid-based pain pill sold in the U.S. over a seven-year period. The database, as well as depositions and emails from drug company executives, were exhibits in a lawsuit, and they became public after the Post sued to secure their release.
It emerged that there were a lot of pharmacies distributing lots of pills in Florida. Is it true that some actually advertised with billboards on I-95?
HIGHAM: Yeah. You know, the progression of the epidemic is really interesting. You know, it began with Purdue Pharma introducing OxyContin. And then, when they got into a lot of trouble, a lot of other manufacturers stepped into the vacuum and began manufacturing generic versions of OxyContin. And at first, a lot of those pills were being sent to internet pharmacies. And they were nothing more than basically criminal operations where anybody with a prescription that you could get from a doctor - or a lot of times they were just phony prescriptions. You upload it. You could email it into an internet pharmacy. And in your mailbox in a couple of days later, you'd have a vial of oxycodone.
That was quickly shut down by the DEA. But it's like whack-a-mole. As soon as that shut down, all of a sudden, you know, all these drug dealers realize that there was another way to peddle these pills, and they began to open up these so-called pain management clinics. And most of them were in South Florida heavily concentrated in Broward County, which is where Fort Lauderdale is. It was not a lot of regulation in Florida. These things were not regulated. They were basically storefront operations in strip malls where you'd had, you know, corrupt doctors and rogue pharmacists working hand in hand inside of a store.
So on one side of the store, you'd come in. You'd get a cursory examination. The doctor would write you a script, and you'd literally go next door and get it filled. And these places just became, you know, huge open-air drug markets. The parking lots were filled with people who were driving down from Kentucky and West Virginia and Ohio to pick up their prescriptions. And along the highway that goes up through Florida, I-75, and then also I-95, a lot of these storefronts began putting up billboards along the highway at exit ramps saying pain management clinic, you know, next exit.
You know, they don't cost a lot of money. And when you go to pharmacy and get generic oxycodone, it may cost a couple of bucks for a vial of 30 oxycodone. Those pills on the street are worth $30 apiece. And so a lot of money was being made, and a lot of pills were being shipped down to Florida by those drug distributors. And the manufacturers were making as many pills as they possibly could to meet this demand.
DAVIES: Let's talk a little bit about the DEA's enforcement efforts against the drug companies. The DEA maintained the database. And you say that they had written letters over the years to drug companies reminding them of their obligations to report suspicious orders and not fill them unless they were comfortable that they were legitimate. That wasn't effective. But there were some major investigations, one of them against McKesson. The DEA investigators were looking for a major effort against this company. What actually happened in that case?
HIGHAM: Well, you know, McKesson is the largest drug distributor. The DEA office of Diversion Control started getting very frustrated that their warnings weren't being heeded. They had done cases against other companies. They had fined other companies. And yet, the pills continued to flow unabated across the country.
And they saw in the database that a lot of the pills were being distributed by McKesson Corporation, and they began a nationwide investigation into that company. They found their pills in pharmacies across the country in staggering amounts that did not look like it was medically necessary whatsoever for a pharmacy to be distributing millions and millions of pain pills every year. And so they began an investigation into that company.
The DEA agent who was running that investigation - he was based in Denver, Colo. - believed that he had enough evidence to proceed against the company criminally. He believed that he could show that there was intent on behalf of the company, that they knew what they were doing and that he had secured information from inside the company that showed what they knew and when they knew it. And yet, they continued to ship these pills.
And he actually wrote a memo along with another prosecutor and presented that to the then-U.S. attorney in Colorado basically outlining what they believed was a potentially criminal case against McKesson. And the U.S. attorney declined to pursue the case against McKesson. Instead, McKesson negotiated with the Justice Department and wound up paying a fine to settle the case.
DAVIES: Right. It was 150 million, which sounds like a lot of money. But compared...
HIGHAM: It does sound like a lot of money. And it - you know, it was the - and I think it still is the - largest fine for diversion of drugs to the black market. But in relationship to McKesson's annual revenue, it's a drop in the bucket.
DAVIES: So the investigators who were so disappointed, why did they think that this happened, that the Justice Department chose to reach the civil settlement and a fine rather than really bring the hammer down?
HIGHAM: Well, I mean, they started to see a pattern. And it's a pattern that they see that continues to this day, that there are people within the Justice Department who are not very aggressive when it comes to these cases. They feel that some of them are a little too close to the industry, that maybe some of the people in the Justice Department want to work for the industry one day. So they don't go as hard against these companies as perhaps they should.
You know, you kind of want to get along to go along in D.C. It's kind of the way of the world in this town, and the Justice Department is no exception. And so there - if you take a look at the revolving door between the Justice Department and the DEA and the drug industry, it's a very impressive revolving door. You have dozens and dozens of high-ranking officials from the DEA and from the Justice Department who have crossed over to the other side, and they're now working directly for the industry or for law firms representing the industry.
And so if you're a DEA investigator or a DEA lawyer or a Justice Department lawyer making $150,000 a year, you cross over. And you can triple, quadruple your salary overnight. And we saw that happen time and time again.
DAVIES: We're speaking with Scott Higham. He's an investigative reporter for The Washington Post. We'll talk more after a short break. This is FRESH AIR.
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DAVIES: This is FRESH AIR, and we're speaking with Scott Higham, an investigative reporter for The Washington Post. He's written about the opioid crisis for several years and is now part of a team that is developing stories from a federal database of all the opioid-based pain pills shipped by American drug companies over a seven-year period. The Post and another newspaper secured that information after a lawsuit to gain access in a civil case.
Now, in 2016, Congress passed a law, which you wrote effectively stripped the DEA of its most potent weapon against large drug companies suspected of spilling narcotics into the nation's streets. What did this law do?
HIGHAM: Well, you know, for many, many years, for decades, the standard for the DEA to meet to immediately suspend the operations of a drug company that was in violation of the law is they had to show that the conduct of that company was an imminent threat to the community. And imminent is the key word here.
And after the DEA started bringing all these enforcement actions against these companies - you know, it wasn't - the fines, while they were, you know, large, they weren't incredibly large. But they were worrisome to the industry, and it was costing them a lot of money. And they were getting kind of a little frustrated that the Justice Department and the DEA kept coming after them.
And so they enlisted the help of a representative from Pennsylvania named Tom Marino and a then-representative from the state of Tennessee named Marsha Blackburn, who's now a U.S. senator, and asked them to help them sponsor a piece of legislation that would upend decades of law relating to these immediate suspensions. And an immediate suspension is a super powerful tool for the DEA. If they find that somebody is recklessly dispensing drugs and causing an imminent danger to that community, they can shut them down overnight, and that costs companies millions. Every day that they can't distribute drugs, it costs them millions and millions of dollars.
And so that was a huge hammer that the DEA used over a number of companies, and the companies wanted to take that hammer away. So what they did is they got a former lawyer for the DEA, who had now turned and started representing the industry, to help craft this piece of legislation. And it basically changed the standard from an imminent threat to a standard that's more like an immediate threat to the community. The likelihood of bodily harm or death will happen if this company's conduct continues.
And so it's very hard to prove that a drug distributor or a manufacturer that is based in Ohio or upstate New York is causing an immediate threat of death or bodily harm to a community in West Virginia or Ohio. It was much easier to show that they were causing an imminent threat, but an immediate threat was impossible. You could show that with a pharmacy because they're literally dispensing to the community, so you could still use these immediate suspension orders against pharmacies. But in terms of trying to go after the drug distributors or the manufacturers, it completely took that weapon out of the DEA's hands.
DAVIES: This change in the standard for suspending operations of a drug company from an imminent danger to an immediate threat - was that really the only significant change in this bill? Did it do anything else?
HIGHAM: The other thing that it did is it provided the companies with the opportunity to file a corrective action plan with the DEA if they were found to be in violation of the law. And basically, the DEA cannot take any action against that company when it files a corrective action plan promising to do better and to change its behavior. The chief judge of the DEA wrote in a law review article, and he equated that provision to allowing a bank robber to leave a bank with a bunch of cash and, after being captured, saying to the police, oh, I'm sorry; I'll just put the money back.
And this was a provision that, to this day, is disturbing to a lot of DEA agents because they go into a company that they feel is not following the law. And the first thing the company does is, like - they say, well, wait a minute. You can't move against my company 'cause I'm going to file a corrective action plan, and I'm going to make sure that the behavior that you're going to try to correct and the enforcement action that you're about to take against my company - you're not going to be able to do that because I'm going to file a corrective action plan. And so it's another way that the industry shielded itself from enforcement actions from the DEA.
DAVIES: So if so many people in the DEA, experienced investigators and officials thought that the subtle change in language in this bill would have stripped the DEA of a critical enforcement power, why didn't they make that case to Congress? Why did President Obama sign this?
HIGHAM: So it took three times for this bill to pass. And so at first, the DEA did fight against it. It was under different leadership then. Michele Leonhart was the DEA administrator at the time. Eric Holder, who was the Justice Department AG, issued a statement - public statement in opposition of the bill and said that it would undermine the agency's enforcement efforts.
So they did fight against it, but there was a change in leadership at the Justice Department. There was a change in leadership at the DEA. A new guy came in named Chuck Rosenberg. Loretta Lynch came in, took over Eric Holder's job. This momentum by the drug industry gathered on Capitol Hill. They got more and more people to sign on to this piece of legislation, which - it was called the Ensuring Patient Access and Effective Law Enforcement Act. And it really had nothing to do with ensuring patient access or effective law enforcement. It was kind of a bizarre name for a bill, but I think a lot of members of Congress didn't even read it. And that happens a lot on Capitol Hill.
And the way this was pitched by the lobbyists for the drug industry is that all this is going to do is clarify the law, clarify our responsibilities so we can make sure that we're doing our jobs properly and that patients are able to get access to the medication that they need. What the members of Congress failed to recognize was that there was a poison pill kind of tucked into this piece of legislation, and it was expertly crafted. It was a very smart legal move. And the bill basically took away the DEA's most important power.
DAVIES: In the case of this civil suit against the drug distributors and manufacturers - I mean, the plaintiffs are states and cities that are still trying to deal with the effects of this addiction epidemic. Is a big, massive settlement like the tobacco settlement likely, and do the drug companies have the kind of deep pockets that the tobacco companies had to make a payment that will satisfy the plaintiffs?
HIGHAM: That's a really good question, Dave. And it's one that, you know, everybody's kind of sitting on edge of their seat waiting to see what happens because so much is at stake. These communities need help - desperately need help. Their hospitals need help. Their foster care agencies need help because so many parents have perished, and their kids have no family or being raised by grandparents. Police departments, paramedics, fire departments that used to fight fires all the time now are, you know, fighting against, you know, the opioid epidemic and carrying Narcan with them, which is a reversal drug - overdose reversal drug, and Narcaning (ph) people all day long. And so these communities really need the money.
Some of these companies do have deep pockets. You know, CVS is one of the largest corporations in the United States. McKesson is the fifth-largest corporation in the United States. You know, Walmart, you know, some - Walgreens - these are big, big companies. So...
DAVIES: Those - and those are all defendants in this case.
HIGHAM: They're all defendants in this case. There are about two dozen defendants, and they're some of the biggest names in the drug industry. You know, Cardinal Health, McKesson, Purdue Pharma, CVS, Walgreens, Walmart - they're all defendants in this case.
But then there's other defendants in this case that have - they might have deep pockets, but they've moved their operations offshore. So there's one big pharmaceutical company that is in Israel. And so there - you know, there are questions as to whether they can get money out of that company. There's another one that is headquartered in Ireland. So there's questions about whether they can get money out of that manufacturer. Then there are some smaller distributors that will probably go bankrupt.
And Purdue Pharma, which, you know, a lot of people blame for lighting the fuse on this epidemic, is close to claiming bankruptcy. And there are reports that the company wants to settle. And they want to - you know, they want to pay to get out of this case, and then they're going to fold up the company. So some companies will disappear. Others will take a hit.
But you know, it's interesting. There are some lawyers who want to settle, and there are others who want to bring this case to trial. They want the American public to see what happened here. They don't want the cases to, you know, get swept under the rug like so many other cases where they reach a settlement and all of the documents are sealed, and the public never finds out about their conduct.
So there are a number of lawyers in this case who believe that these companies should stand trial. There are other lawyers involved in this case who believe that some of these company executives should be criminally prosecuted for their conduct.
DAVIES: Well, Scott Higham, it's been interesting. Thanks so much for speaking with us.
HIGHAM: Thanks for having me.
DAVIES: Scott Higham is an investigative reporter for The Washington Post covering the opioid crisis.
Coming up, Maureen Corrigan reviews a book of essays she says are perfect to take on your next trip into the park. This is FRESH AIR.
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