Criminal Trial Of Opioid-Peddling Drug Company Execs Goes To The Jury

Apr 7, 2019
Originally published on April 19, 2019 8:03 am

Closing arguments are done and the criminal trial of pharmaceutical executive John Kapoor is now in the hands of the jury. Deliberations begin on Monday.

The federal government has accused Kapoor and his four co-defendants of bribing doctors and deceiving insurance companies. In bringing criminal charges against corporate executives, the federal government is widely seen as trying to demonstrate that it is acting aggressively against drug companies and the role they allegedly played in the opioid epidemic.

Driven by greed

During the trial, federal prosecutors depicted the onetime billionaire as a man driven by greed. During closing arguments, Assistant U.S. Attorney Nathaniel Yeager told jurors in Boston's Moakley Federal Courthouse that Kapoor put patients' lives at risk to ensure his own financial success.

Kapoor, the founder of Insys Therapeutics, allegedly oversaw a marketing strategy that paid doctors more than $1 million to prescribe Subsys in high doses — often to patients who did not need it. Subsys is a highly addictive opioid painkiller up to 100 times stronger than morphine.

Then, prosecutors claim, Insys set up a call center to ensure the expensive medication was covered by insurers. At the call centers, Insys employees allegedly pretended to be from doctors' offices and fabricated diagnoses and other information necessary to get the medication approved.

"The decisions, the money, the strategy came from the top," Yeager said. The obligation of physicians to "first, do no harm, became: First, do what you're told."

Yeager showed the jury internal company spreadsheets detailing how much money Insys had paid each doctor and the ROI, or return on investment, from those payments. That is, exactly how much money the company was making back via prescriptions from each doctor it had paid. Yeager suggested it should be called ROB — "return on bribe."

Defense rests in less than three days

After nine weeks of testimony from the government witnesses, the defense rested its case in less than three days.

"The story cannot be true, and they don't care because they have had their eye on this man," Kapoor's attorney Beth Wilkinson told jurors in her closing arguments, gesturing toward Kapoor. "They want to show that they can take down the guy at the top."

Wilkinson argued that Kapoor was motivated by two things: First, Kapoor vowed to do something after watching his late wife suffer in severe pain while dying of cancer. Second, Kapoor believed in the medication and thought it worked better and faster than comparable painkillers. That's why, his attorneys asserted, Kapoor kept his stock in the company and stepped in as CEO when Insys Therapeutics was struggling.

As for the alleged illegal activity, Wilkinson laid the blame on former Insys executives who have flipped, pleading guilty and testifying for the prosecution. She said they orchestrated the schemes, unbeknownst to Kapoor.

Pill mills, for us, meant dollars. - Alex Burlakoff, former vice president of sales, Insys Therapeutics

Wilkinson argued the government's star witnesses were not to be trusted. Not only had they overseen the illegal schemes — thus, they had a track record of lying — but they also had an incentive to lie and blame Kapoor because they want more lenient sentences, she said.

Wilkinson spent much of her closing arguments detailing inconsistencies between the government's witnesses.

One of the main government witnesses in the trial was Alec Burlakoff, the former vice president of sales at Insys.

On the witness stand last month, Burlakoff admitted to bribing doctors and testified to purposefully targeting unscrupulous doctors known for liberally prescribing opioids. "Pill mills, for us, meant dollars," Burlakoff said. "It was not run the other way. It was run to the pill mills."

He appeared briefly in a music video Insys sales reps made about getting patients on the highest dose possible. Burlakoff testified that he had discussed the bribery strategy with Kapoor and was only following his guidance.

But both federal prosecutors and defense attorneys agree that Burlakoff repeatedly lied to investigators and possibly in his testimony.

Prosecutors argued that Burlakoff's behavior was further evidence against Kapoor. "Would you hire him as your VP of sales?" Yeager asked the jurors during his closing arguments. "You saw him. Would you put him in charge of a sales strategy?"

Kapoor's attorneys argued this same behavior demonstrated that the government's case was weak. "Why else would you cut a deal with that guy? They didn't have enough evidence otherwise," Wilkinson said. "[Burlakoff] was the one. Every road — of bad conduct, of bad action — leads back to him."

After 10 weeks of testimony, dozens of witnesses, and thousands of documents of evidence, the trial of Kapoor and his co-defendants has been turned over to the jury.

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AUDIE CORNISH, HOST:

Closing arguments wrapped up today in the trial of onetime billionaire John Kapoor, the founder of the pharmaceutical company Insys Therapeutics and other former Insys executives are charged with racketeering. Federal prosecutors believe they oversaw a scheme to bribe doctors to prescribe an opioid painkiller and deceived insurance companies to make sure the drug was covered. Gabrielle Emanuel of member station WGBH has been following the criminal trial in Boston's federal courthouse.

Welcome to the program.

GABRIELLE EMANUEL, BYLINE: Thank you.

CORNISH: Describe these allegations against Kapoor and his co-defendant.

EMANUEL: So all of it centers around this drug company Kapoor founded, called Insys Therapeutics, and the drug they developed, called Subsys. This is a fentanyl-based painkiller that the FDA approved to treat cancer patients in severe pain. Just for reference, it's up to a hundred times stronger than morphine and very addictive. The allegations are twofold. First, bribery. Insys Therapeutics allegedly created this phony speakers program as a way to pay doctors. But the doctors would only be paid as speakers if they wrote lots of prescriptions for Subsys, and often these prescriptions were written at very high doses and to patients who didn't have cancer.

This second part of this alleged scheme involves lying to insurance companies. The goal was to get this very expensive medication, which can be tens of thousands of dollars a month, covered by insurance. Prosecutors say Insys had employees pretend to be from the doctor's office and make up diagnoses to make sure the medication got approved.

CORNISH: What's the significance of Kapoor and his co-defendants being charged with racketeering?

EMANUEL: Racketeering, or RICO laws, were originally designed to go after organized crime. So think mafia bosses and drug lords. So anytime it's used against corporate executives - in this case, drug company executives - it's noteworthy. The federal government is essentially arguing here that the way this company did business was similar to the mob.

CORNISH: So the federal government spent more than nine weeks laying out their case, and I understand the defense attorneys rested in less than three days. So what was their argument?

EMANUEL: Yes. So their argument was basically, this drug is good, it really helps people. Kapoor was motivated by his personal experience, seeing his wife suffer from cancer as she died. But the real crux of the defense argument came during the cross-examination of government witnesses. The government relied on several former Insys executives, who pleaded guilty and testified for the prosecution in the hopes of getting a more lenient sentence, and the defense basically argued that the jury shouldn't trust their testimony. They said, it's those guys who ran the illegal scheme. Kapoor knew nothing about it. And they have a track record of lying. And on top of that, they have an incentive to lie. They want a more favorable sentence, and they're contradicting each other. So nothing is proved here.

CORNISH: There are a lot of pharmaceutical companies facing legal troubles amidst the opioid epidemic. How does this compare to the other lawsuits we're hearing about?

EMANUEL: The really big difference here is that this is a criminal trial. If Kapoor and his co-defendants are found guilty, they face up to 20 years behind bars. So by pursuing this criminal case, the federal government appears to be sending a message that they are holding drug companies accountable for their alleged role in fueling the opioid epidemic. But the risk is if they lose this case, if the jury returns a not guilty verdict, that could put the brakes on this strategy.

CORNISH: Gabrielle Emanuel from member station WGBH in Boston. She's been following the criminal trial of drug company executive John Kapoor. Closing arguments in the 10-week case finished today. The jury starts deliberations on Monday.

Thank you for sharing your reporting with us.

EMANUEL: Thank you. Transcript provided by NPR, Copyright NPR.