Judge Permits Two Controversial Opioid Sales Training Videos to Be Shown to Jury in New York State Opioid Trial

On Tuesday, Dec. 7, 2021, the jury in the New York State opioid trial viewed two controversial internal sales-training videos from Teva Pharmaceuticals that had previously been under seal.

The jury’s viewing of the controversial videos came after months of scrambling on behalf of Teva, during which the company filed numerous appeals attempting to stop the clips from being seen by jurors, fearing that they could be “incredibly damaging” to their defense case.

Produced in 2006, the short videos feature famous scenes from two popular feature films: Austin Powers: International Man of Mystery (1997) and A Few Good Men (1992). The original films’ dialogue was dubbed over by the voices of Cephalon employees discussing sales and marketing tactics of their — at the time — new prescription fentanyl-based painkiller Fentora® (Teva purchased Cephalon in 2011).

One of several opioid painkiller drugs now under intense public scrutiny, Fentora helped fuel a more than two-decades-long opioid crisis that, according to the U.S. Centers for Disease Control and Prevention (CDC), has killed more than 840,000 Americans and led to the opioid addictions of at least three million individuals.

Jury Views Controversial Videos

In the video dubbing of Austin Powers, which spoofs a scene featuring the villain Dr. Evil in his lair sitting at a conference table with his advisers, a sales executive is sent to a fiery death after making excuses for failing to meet certain sales quotas due to a “packaging problem.”

Speaking in air quotes, a dubbed-over Dr. Evil says, “We will do studies in low-back breakthrough pain, neuropathic breakthrough pain and for all non-cancer breakthrough pain — a new ‘pivotal study.’ Using these ‘studies,’ we will… show doctors around the world that Fentora ‘works for all breakthrough pain.’” The video then goes on to describe how Fentora became the highest-selling opioid in the company’s history, selling more than $33 million in the first 90 days on the market.

In the company’s reproduction of the climactic scene from A Few Good Men —  in which Jack Nicholson’s character, Col. Nathan R. Jessup, famously shouts the lines “you can’t handle the truth!” — attempts to justify the actions of the sales team.

Wearing military attire, Cephalon Vice President of Sales Roy Craig is edited into the scene playing Nicholson’s character as he is examined by Tom Cruise. In response to Cruise’s questioning, Craig says:

“You can’t handle the truth. Son, we live in a world that has quotas and those quotas have to be exceeded by reps with skills…. My existence, while grotesque and incomprehensible to you, makes bonuses … you need us to sell…. I have neither the time nor the inclination to explain ourselves to people who rise and sleep under the very blanket of revenue we provide and then question the manner in which we provide it.”

Used as sales and marketing training videos, the controversial short films were most likely intended to elicit comical responses from company reps and to provide them with motivation for not only meeting but surpassing their annual sales quotas of the controversial drugs.

Videos Shown Day Before Closing Arguments

After much back and forth between plaintiff attorneys representing the state (and its two hardest-impacted communities, Suffolk and Nassau Counties) and the remaining defendants — Teva Pharmaceuticals and Anda — Suffolk County Supreme Court Justice Jerry Garguilo, who is presiding over the trial, ultimately determined that the jury would be permitted to view the videos.

Court filings from Teva-Cephalon show the company argued that the videos should remain sealed because they could ultimately be seen by jurors as “incredibly prejudicial” and “damaging” to the point of presenting a “grave risk of a jury verdict based on a negative reaction to irrelevant videos rather than actual evidence.”

In mid-October, following competing requests from plaintiffs and defendants on the releasing of the videos, Judge Garguilo said, “I disagree with defendants that they’re too prejudicial — you produce them, you’ve got to live with them, period.”

The judge continued, saying Teva-Cephalon’s request to keep the jury from viewing the videos is analogous to “someone accused of patricide asking for forgiveness because he or she is an orphan.”

While the jury has now seen the videos, it remains to be seen how their viewing will impact the outcome of the trial.

The New York State opioid trial, which began in June 2021, is nearing the six-month mark. The once sprawling case has seen a number of settlements from key defendants, including Allergan, which settled for $200 million on Wednesday, Dec. 8.

Remaining defendants include Teva-Cephalon and Anda. Closing arguments began on Wednesday morning and are expected to continue through Thursday.

Simmons Support Team
Simmons Hanly ConroyWritten by:

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View 5 Sources
  1. National Institute on Drug Abuse. “Opioid Overdose Crisis.” Retrieved Dec. 7, 2021, from https://www.drugabuse.gov/drug-topics/opioids/opioid-overdose-crisis
  2. Overlay, Jeff. “Teva Fears 'Incredibly Damaging' Parody Videos In Opioid Trial.” Law360, 19 Oct. 2021. Retrieved Dec. 7, 2021, from https://www.law360.com/articles/1431342/teva-fears-incredibly-damaging-parody-videos-in-opioid-trial
  3. Salvatore, Cara. “Opioid Jury Finally Sees Teva’s Movie-Parody Sales Videos.” Law360, 7 Dec. 2021. Retrieved Dec. 8, 2021, from https://www.law360.com/articles/1446536/opioid-jury-finally-sees-teva-s-movie-parody-sales-videos
  4. Salvatore, Cara. “Allergan Strikes $200M Deal to Exit NY Opioid Trial.” Law360, 7 Dec. 2021. Retrieved Dec. 8, 2021, from https://www.law360.com/lifesciences/articles/1446808/allergan-strikes-200m-deal-to-exit-ny-opioid-trial
  5. U.S. Centers for Disease Control and Prevention. “Data Overview: The Drug Overdose Epidemic: Behind the Numbers.” Retrieved Dec. 7, 2021, from https://www.cdc.gov/opioids/data/index.html

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