All posts by nickrishwain

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Opioid Crisis – An increase in addiction medicine and pain management expert witnesses.

In the nearly 8 years that I’ve been with Experts.com, I have noticed a massive increase in the number of addiction medicine and pain management expert witnesses marketing their services with our company. Between 2010, when I joined Experts.com, and today, the increase has been nearly five-fold.

Is this increase a surprise? Based on what we’re seeing in the news, the answer is no. The United States is experiencing an opioid epidemic. According to CNN’s Opioid Crisis Fast Facts, “more than two million of Americans have become dependent on or abused prescription pain pills and street drugs.” CNN further explains, “during 2015, there were 52,404 overdose deaths in the United States, including 33,091 (63.1%) that involved an opioid. That’s an average of 91 opioid overdose deaths each day.”

Just last week, I spoke to one expert witness who experienced an opioid-related death in his family.  The same day, hours apart, another expert began promoting his pain management and addiction medicine services on our site. This epidemic is impacting millions of families throughout our country. As a result of this epidemic, and much of the overdoses stemming from prescription medication, we are beginning to see significant litigation in the area of opioid-based pharmaceuticals.

Our Opioid Litigation Experiences:

Experts.com has processed more than a handful of expert witness referrals related to opioids. The cases have ranged from prescription abuse in family law settings to overdose issues resulting in wrongful death actions. Probably the most interesting opioid-related matter was as follows: general counsel for a mining company in a small town discovered the townspeople were using methadone at a rate approximately 5 times higher than the national average. Many citizens of the town were also employees of the mining company. They grew concerned about the potential liabilities of employees operating heavy equipment while ingesting powerful pain killers. The company decided to do some testing which triggered some privacy concerns and potential litigation. We have delivered toxicologists, addiction medicine specialists, and pain management professionals in dozens of different opioid-related cases.

Recent Litigation:

In the last few years, we have seen stories of both civil and criminal litigation related to the opioid epidemic, even before it was claimed to be a crisis. Here are a few of the cases you may want to follow:

Civil Litigation:

There have been many lawsuits against Purdue Pharma (maker of OxyContin) since the early 2000’s. As one article explains, more and more state and local governments are launching lawsuits against the manufacturers and distributors of heavy-duty pain medications. The frequency of these lawsuits is almost weekly.  In addition to Purdue Pharma, Cardinal Health, Teva Pharmaceuticals, Janssen, and others are targeted.

In July of this year, one of the lawyers, Michael Moore, who targeted tobacco companies in the 1990’s, began urging state lawsuits against the drug makers. By August, an Oregon County sued pharmaceutical companies for $250 million for allegedly persuading physicians to over prescribe opioids. As of September, Attorneys General in 37 states were urging insurance companies to do more to curb the opioid epidemic.

What can we deduce from the high-profile coverage of civil suits against the makers of pain killers? In my assessment, the worst is yet to come for the drug makers. This does not mean the drug makers are defenseless against the lawsuits. After all, there are others in the supply chain to be blamed: doctors, pharmacies, and the patients themselves. Over the long-term, the pain medication lawsuits are likely to be very costly for manufacturers and distributors.

Criminal Litigation:

For the sake of brevity, I’m going to ask you to assume that there is significant drug related crime and we’re going to skip the standard (possession and distribution) opioid cases. Where I have noticed a substantial increase, both in the news and in requests for expert witnesses, is in criminal prosecutions of prescribing physicians and pharmacists.

As CNN described, “doctors are increasingly being held accountable — some even facing murder charges — when their patients overdose on opioid painkillers they prescribed.” The article further explains that the DEA took action against 88 doctors in 2011 and 479 doctors in 2016. One of the doctors described has been convicted of murder. I see at least one new story a week where a doctor, or pharmacist, is being held responsible for the excessive amounts of pain killers prescribed.

The numbers described in the article above, combined with a more aware public, lead me to believe we’ll see even larger numbers of DEA actions against doctors when the 2017 statistics are available.

Other Legal Issues:

As you can tell, I focused on the two areas that I’ve noticed the largest increase in visible litigation. We have processed many other expert witness referrals associated with opioid issues. Many overdose cases are resulting in medical malpractice actions as well as actions brought by medical boards for ethical violations by doctors.  We often see the requests for expert witnesses relating to emergency medicine physicians, toxicologists, pharmacy and pharmacology experts, and more.

Opioid litigation may very well be the “tobacco” litigation of our time.  As such, we are confident that we’ll have more to write about and discuss in the future.

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Paul Manafort Indicted: What expert witnesses can we expect to see from defense and prosecution?

Robert Mueller’s investigation into Russian interference in the US Presidential Election has resulted in the indictment of Paul Manafort and one of his business associates, Rick Gates. It has been reported that a third individual, George Papadopolous, has pleaded guilty for making false statements to the FBI.

None of this is particularly surprising. On Friday we learned the first indictments would be handed down as early as today, and that is exactly what happened. As of this writing, Paul Manafort has turned himself into the FBI’s Washington Field Office.

ABC News reported the list of charges against Mr. Manafort and Mr. Gates. The 12 counts include: “conspiracy against the United States, conspiracy to launder money, serving as an unregistered agent of a foreign principal, false and misleading Foreign Agents Registration Act statements, false statements, and seven counts of failure to file reports of foreign bank and financial accounts.”

We are not writing to take any political side and it should be noted that an indictment does not mean the defendants are guilty of the charges. In fact, they are innocent until proven guilty. Rather, we wanted to discuss the expertise which may come into play in this matter.

What types of expert witnesses can you expect to see?

Forensic Accountants:

Based on the counts enumerated above, it appears the FBI has followed the money. As such, we expect the forthcoming prosecution will hinge on financial transactions and accounting related issues. As stated above, Manafort and Gates were charged with seven counts of failure to file reports of foreign bank and financial accounts in addition to conspiracy to launder money. If money is flowing in and out of multiple bank accounts forensic accountants are going to be needed to analyze the transactions and explain those transactions to the trier of fact.

Money Laundering / Anti-Money Laundering Experts:

Are you surprised to hear this type of expertise exists? Money laundering experts may have a background in forensic accounting, financial fraud, banking, and banking compliance. Again, there was a charge of failure to file reports of foreign bank and financial accounts. Failure to report these accounts might be a compliance issue. The prosecution could argue such a failure was purposeful and intended to evade reporting. Whereas, the defense may contend failure to report was accidental or negligent. We expect to see both sides presenting expert evidence on financial transactions and reporting.

Computer/ Digital Forensics:

Nothing in the counts of the indictment specify a digital forensics expert will be necessary. We are assuming that many of the financial transactions were done electronically and therefore attributing the transactions to the defendants may require electronic discovery and other digital forensic investigation / analysis.

This list should not be viewed as exhaustive. Looking at the counts in the indictment, it appears the upcoming case will be heavily litigated on financial matters. Going forward, we will look for news items related to forensic accounting and inform our readers as we know more.