By Andrew Gomes
Posted February 17th, 2021
More than $650 million could flow into Hawaii’s suffering general fund from a landmark legal victory Monday against two giant drugmakers, but such a deposit could be two years off or longer.
An $834 million civil penalty granted to the state by Hawaii Circuit Judge Dean Ochiai was far and away the biggest monetary win in a Hawaii government lawsuit ever, according to Honolulu attorney Rick Fried, who helped litigate the case on behalf of the state.
Ochiai’s ruling said the makers of the blood-thinning drug Plavix, Bristol-Myers Squibb Co. and Sanofi, failed to properly warn Hawaii doctors and patients that Plavix was known to be less effective for some users, especially people of Asian and Pacific Islander ancestry, until 12 years after the drug became available in December 1998.
Bristol-Myers Squibb, based in New York, and Paris-based Sanofi declared that they will appeal, and contend that Ochiai’s decision was an erroneous one “unsupported by the law and at odds with the evidence” during the four-week trial last year.
State Attorney General Clare Connors said Tuesday that she expects it could be two years, or “very likely” longer, for the case to proceed through the promised appeal.
However, Fried noted that the drug companies will owe the state 10% annual interest, or $83.4 million a year, on top of the original penalty in the event Ochiai’s decision stands after an appeal is over.
Fried also said he is optimistic that the penalty will be paid within two years.
Fried’s firm, Cronin Fried Sekiya Kekina &Fairbanks, fronted the cost of the complex litigation with Dallas- based law firm Baron &Budd. For their work, which lasted seven years and included dealing with 12.5 million documents submitted by the drug companies, the two private law firms will share 20% of any final award. The state would receive 80%, which amounts to $667 million of the $834 million.
The case did not involve damages to be paid to individual patients, but Baron &Budd attorney Dan Alberstone said the case helps protect public health by penalizing what the court described as an unfair and deceptive practice by the two drug companies.
“The greatest charge a state has is the health and welfare of the people of the state,” he said.
The state contended that some people who took Plavix lacked enzymes to activate the drug, and therefore were unknowingly prescribed ineffective medicine that in some cases led to death for patients with heart issues because the makers of Plavix did not disclose this risk in packaging until 2010.
The makers of Plavix said the overwhelming body of scientific evidence shows that the drug is effective, even for patients who don’t metabolize the drug as well as others.
“The penalties awarded by the court are wholly unsupported, particularly given that the State of Hawaii provided no evidence that even a single person has been harmed by Plavix,” Bristol-Myers Squibb and Sanofi said in a joint statement.
Fried said Plavix has been one of the five bestselling drugs in the world, with $72 billion in sales.
Connors said there were about 834,000 sales of Plavix in Hawaii over the 12-year period, and the judge imposed a $1,000 fine per sale, which was at the low end of a possible range from $500 to $10,000.
“The bottom line here is that the defendants put profits over the well-being of patients in our state,” she said.