Insys trial looms with implications for Kansas lawsuits

A scandal-plagued opioid manufacturer will soon go on trial in a federal criminal case with implications for a spate of Kansas lawsuits.

Top executives of Insys Therapeutics, including billionaire founder John Kapoor, are facing charges that they bribed doctors to get them to prescribe their powerful fentanyl spray, Subsys.

Most of the patients who got it allegedly didn’t need it, some got addicted and some suffered fatal overdoses. Lawsuits against the company and doctors have been filed across the country, including four in Johnson County and one in Leavenworth County, since the charges were announced in December 2016.

But the Kansas suits have largely been in a holding pattern as the parties await the results of the criminal trial in Boston, scheduled to begin Jan. 28.

Attorney David Helms of the law firm German May.

Keith Myers kmyers@kcstar.com

In the meantime, David Helms, who is representing four of the five plaintiffs in the Kansas civil suits, said he has been closely following the pre-trial filings in the federal case and has even spoken with the prosecutors.

“Other than simply underscoring the validity of our clients’ claims, it also demonstrates that this is a problem that goes well beyond one individual,” Helms said.

The upcoming trial has gained national attention as the most significant criminal prosecution of pharmaceutical company executives since the beginning of an opioid epidemic that has caused thousands of deaths.

Guilty verdicts in Boston would certainly bolster his clients’ cases, Helms said, but not-guilty verdicts wouldn’t scuttle them because criminal prosecutors have to meet a higher burden of proof than plaintiffs in civil suits.

Federal prosecutors allege that Kapoor and other top Insys officials bribed doctors by paying them speaking fees based on how much Subsys they prescribed. Most of them have denied the charges, but vice president of sales Alec Burlakoff changed his plea to guilty Nov. 28 and agreed to cooperate with the prosecution, setting off speculation he will testify against Kapoor and the others.

Reuters reported Dec. 26 that the company’s former CEO Michael Babich had also switched his plea to guilty.

Doctors across the country accused of participating in the scam have faced lawsuits from patients who suffered from painful withdrawal trying to get off the medicine and from the families of patients who suffered fatal overdoses.

Overland Park doctor Steven Simon is one target of a wrongful death case over Subsys, a powerful opioid spray.

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The doctors include Steven Simon, an Overland Park rehabilitation medicine specialist who was the eighth-highest paid Subsys speaker in the country from 2013 to 2015, taking more than $200,000 from Insys.

Simon is now facing four Subsys-related malpractice lawsuits from former patients in Johnson County. He also faces a wrongful death lawsuit in Leavenworth County alleging that Doris Jordan’s fatal fentanyl overdose in 2014 was due to Subsys.

Helms is representing Jordan’s husband and three of the Johnson County plaintiffs.

“None of the patients that we have spoken with had any inkling as to the financial incentive that Dr. Simon and other providers across the U.S. were receiving in order to prescribe this drug,” Helms said. “That financial incentive came as a shock to everyone, really, and it wasn’t brought to light until the criminal investigation and investigators began approaching some of these patients — and the Jordan family, as well — concerning their treatment from Dr. Simon.”

A host of attorneys met in Leavenworth County District Court in late November to decide when the Doris Jordan wrongful death case could be brought to trial.

Keith Myers kmyers@kcstar.com

Simon and his attorneys have repeatedly said the accusation that he participated in a kickback scheme is false and that all of his Subsys prescriptions were based on his best clinical judgment, not the payments he was getting from the drug’s manufacturer.

FBI agents seized patient records from Simon’s clinic last year but he has not been charged with a crime. His attorney declined to comment when asked if Simon was cooperating with federal prosecutors in the criminal case and whether he might be called to testify later this month.

Whistleblower lawsuits unsealed in May revealed that the Insys drug sales rep who served Simon’s clinic, Torgny Andersson, was one of five insiders cooperating with the prosecution. Andersson’s attorney said he also couldn’t say yet whether Andersson will be called to testify later this month.

Subsys is a powerful opioid-based fentanyl spray produced by Arizona-based Insys Therapeutics.

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The Kansas lawsuits name as defendants three former Insys executives, the company itself, Simon and Andersson, as well as a nurse in Simon’s clinic and several drug distribution companies that the suits say should have flagged the Subsys orders flowing into Kansas City area as suspicious.

“If any one of the various defendants had played their part and followed their obligations under the law, harm might have been cut off,” Helms said, “or at a minimum mitigated.”