So far, Polster has imposed a draconian secrecy on the proceedings. The judge, a former federal prosecutor confirmed to the bench in 1998, has given the litigants broad discretion to determine what records remain secret. As a result, entire lawsuits have been filed under seal in his court, including supporting evidence drawn from millions of records that detail the industry’s conduct over two decades.
All the companies have denied the allegations. Teva and McKesson declined to comment for this article. Walgreens did not respond to a request for comment. Janssen said its marketing of opioids was “appropriate and responsible.”
Privately held Purdue, controlled by the Sackler family, said that OxyContin “has been deemed safe and effective for 12-hour dosing,” that it has always given the U.S. Food and Drug Administration (FDA) all information the agency requires, that protective orders are routine, and that any suggestion the company used court-ordered secrecy to withhold relevant safety information about OxyContin is misleading and inflammatory. Purdue said it has spent more than $1.5 billion on efforts to solve the opioid crisis. "These efforts, not the disclosure of Purdue’s internal documents, will help solve the complex opioid abuse crisis," it said.
A few states, including Texas and Florida, have adopted “sunshine” rules and laws that limit the sealing of health and safety records. At the federal level, corporate lobbying has stymied sunshine legislation for decades.
Opponents of sunshine laws often cite a 1991 Harvard Law Review article in which New York University law professor Arthur Miller wrote that no hard evidence showed that court secrecy caused any harm to public health or safety. “Research or statistical data is completely nonexistent,” Miller wrote.
In an interview, Miller said Reuters’ analysis of court data helps fill that void and suggests that judges are not fulfilling their responsibility to guard the public interest. “Certainly, anything relating to public health or things tied to social policy, you would want to have an explanation as to why something is sealed,” he said.
“THAT’S BANANAS”
In the years following the Purdue case, Judge Stephens watched the wreckage of opioid addiction flow through McDowell County Circuit Court: burglaries, robberies, assaults. Thursdays in the hilltop courthouse in Welch were usually spent dealing with parents accused of child abuse and neglect.
On one rainy Thursday last February, a clerk led a steady stream of mothers and fathers into Stephens’s chambers, where he decided whether their children could remain with them. “In almost every case, the parents are addicted,” Stephens said later. “We have parents who are now choosing drugs over their own children.”
When the state’s suit against Purdue came before him in 2001, the cumulative U.S. death toll from opioids since 1999 was 16,000, according to the National Institute on Drug Abuse. Stephens, who served for more than three decades on the McDowell County court before his May retirement, still counts it as his most high-profile case.
During the discovery process, each side was obliged to send information requested by the other – including the Purdue documents describing the company’s development and marketing of OxyContin. That exchange is where secrecy gets its start in lawsuits.
For decades, the rules of civil litigation required that evidence collected during discovery be logged with the court, open to public scrutiny. Secrecy was the exception.
In the 1980s and 1990s, rule changes moved discovery out of the courthouse and thus out of public view. Instead, the material was to be swapped privately between the lawyers involved. Companies eager to keep their records confidential had pushed for the change, but it also served the interests of judges and court clerks inundated with increasingly complex product-liability cases and huge caches of documents accompanying them.
“He’s not allowed to do that without providing reasons.”
Professor Jennifer Oliva, West Virginia University College of Law, on Judge Stephens’s decision to allow evidence in West Virginia’s lawsuit against Purdue to be sealed
In the early 2000s, under the new discovery rules, Purdue’s lawyers sent the company’s documents directly to lawyers working for West Virginia, outside the court record and thus inaccessible to the public. This exchange occurred, as it almost always does, under the judge’s protective order that the material remain confidential.
Lawyers for Purdue filed a pretrial motion asking Judge Stephens to dismiss the case. West Virginia, to support its argument that the case should go to trial, submitted as evidence some of the documents Purdue had handed over in discovery.
Such evidence entered into the court record to support a pretrial motion is generally the only way, short of a trial, that discovery material is made public – though that evidence often represents only a tiny fraction of what’s produced in discovery. Here, too, secrecy prevailed. Lawyers for Purdue and the state agreed between themselves that the state would file its motion and supporting evidence under seal. Stephens did not evaluate the material to determine whether secrecy was warranted, as required by state law, and he provided no rationale.
“That’s bananas,” said Jennifer Oliva, a professor at West Virginia University College of Law. “He’s not allowed to do that without providing reasons.”
Judge Stephens was no rogue outlier. At least 16 other judges allowed internal documents produced by Purdue in lawsuits filed between 2001 and 2007 to be sealed without explanation. Court records make clear that evidence under seal pertained to Purdue’s marketing.
More broadly, in at least 31 of the 115 large federal product-liability cases Reuters reviewed, judges sealed entire arguments that dealt directly with the strength of the evidence. Court rules frown on such broad sealing practices because truly confidential information rarely spans an entire legal brief. In most of those cases, nothing in the court record indicates that the judge conducted any analysis of whether secrecy was merited.
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