The Atlanta Journal-Constitution
Opioid lawsuits coming fast and furious
Deluge of actions creates legal crisis for $13B industry.
The companies that manufacture and distribute highly addictive painkillers are facing a barrage of lawsuits for the toll their product has taken on communities across the country as the worst drug epidemic in U.S. history continues to escalate.
Within the past year, at least 25 states, cities and counties have filed civil cases against manufacturers, distributors and large drugstore chains that make up the $13 billion-a-year opioid industry. In the past few weeks alone, the attorneys general for Ohio, Oklahoma and Missouri, along with the district attorneys for three judicial circuits in Tennessee, filed suits against the industry.
The strategy echoes the effort against major tobacco companies in the 1990s and is born of similar frustration over rising death rates and the increasing costs of addressing the continuing public health crisis. After years of government and pharmaceutical firms failing to control the problem, some lawyers say the suits have the potential to force the industry to curb practices that contribute to it.
“If they’re not going to do it voluntarily, we’re going to drag them to the table and make them,” said Ohio Attorney General Mike DeWine, who sued five drug manufacturers for the costs of the opioid epidemic.
Dozens of other state, county and city governments and local law enforcement agencies are considering legal action. Some states are interviewing law firms.
Delaware is among a handful of states that are even issuing “requests for proposals” from law firms.
In addition, more than half the country’s state attorneys general — Republicans and Democrats — have banded together to investigate the industry.
Two congressional panels also are examining the industry — the Senate Homeland Security and Governmental Affairs Committee and the House Energy and Commerce Committee. The Justice Department’s Inspector General is investigating why the Drug Enforcement Administration slowed enforcement efforts against drug distribution companies.
Representatives of the companies deny wrongdoing and vow to vigorously defend themselves. They said they have taken steps to prevent the diversion of their drugs to the black market. Stemming the epidemic, they said, will take a coordinated effort by doctors, the industry and federal and local government agencies.
“As we look to prevent abuse and misuse in the future, it will require a forward-looking, systemic approach that calls on greater coordination and collaboration between healthcare, law enforcement, and state and federal regulatory authorities,” said the Healthcare Distribution Alliance, which represents companies that distribute drugs.
But in a blow to the industry, the D.C. Court of Appeals last week rejected arguments from a drug distributor, Masters Pharmaceutical, that would have undermined the DEA’s ability to hold companies responsible for pain pills that are diverted to the black market.
The lawsuits come as states and communities grapple with the economic impact of a prescription drug epidemic that has resulted in nearly 180,000 overdose deaths between 2000 and 2015 — more than three times the number of Americans who died during the Vietnam War. The epidemic has led to thousands more deaths from overdoses of heroin and fentanyl, which are becoming easier and cheaper to obtain than prescription drugs.
But winning the lawsuits will not be easy, according to Richard C. Ausness, a professor at the University of Kentucky College of Law who studies product liability litigation. He said it is more likely that the companies will settle rather than try to defend themselves against dozens, perhaps hundreds, of lawsuits.
“I think what’s going on, and this is what happened in the tobacco litigation, is that the plaintiffs never actually won a case,” Ausness said. “What they did is they drove up the cost of litigation so much that the defendants finally settled.”
Manufacturers, distributors and pharmacy chains are expected to argue that they cannot be held responsible for what happens to pain pills once they travel down the supply chain.
“They ship a drug that’s approved by the FDA (Food and Drug Administration), and then a bunch of bad actors intervene — pill mills, doctors who overprescribe and the addicts themselves,” Ausness said. “It’s a pretty strong argument.”
The suits are reminiscent of the tobacco cases filed two decades ago. In the 1990s, 46 attorneys general eventually combined their resources to sue the tobacco companies. In 1998, the industry settled those suits, paying more than $200 billion.
“These pharmaceutical companies should be scared as hell,” said Richard Fields, an attorney who has filed suit on behalf of the Cherokee Nation in Oklahoma.
The suit alleges that the nation’s top six drug distributors and pharmacy chains flooded the state with hundreds of millions of pain pills, decimating the Cherokee Nation’s 14 counties.
During a meeting of the Democratic Attorneys General Association in May in Portland, Ore., industry officials said they were not to blame for the epidemic. Instead, they said during a panel discussion that they were part of the solution and had put programs in place to prevent the illegal use of pain pills.
Grant Woods, a former Arizona attorney general who was the first Republican to sue the tobacco companies, said he was appalled by what he heard. As the officials finished their presentations, Woods stood from his seat in the crowded sixth-floor ballroom of The Nines resort hotel and told them they all deserved to be sued.
Woods has joined forces with another veteran of the tobacco lawsuits, Mike Moore, who served as the attorney general for Mississippi and filed the first of the tobacco suits. The two attorneys, along with other high-profile lawyers, are now working for Ohio and Mississippi on their opioid cases, and they are signing up other states to sue the companies.
Woods said the similarities between the opioid and tobacco suits are striking.
“They are big companies that knew their product was doing harm,” he said. “Instead of helping to solve the problem, they promoted the irresponsible use of their product to improve their bottom line.”
At the same time, prescription narcotics, when used appropriately, can eliminate pain without deadly health consequences — a claim cigarette manufacturers could not make.
The suits target some of the biggest names in the business, including McKesson, Johnson & Johnson and CVS.
Some of the suits allege that the companies fraudulently marketed opioids to the public. Others claim that the companies failed to report suspiciously large orders of pain pills placed by distributors and pharmacies.
McKesson, the largest drug distribution company in the country, said in a statement: “While McKesson doesn’t manufacture, prescribe, or dispense opioids, we have taken steps to play a leadership role in combatting this epidemic in close partnership with doctors, pharmacists, the DEA and other organizations across the supply chain.”
CVS said it has “stringent” procedures to keep prescription pain pills out of the hands of drug addicts and dealers.
As the epidemic spreads, more states are declaring states of emergency and filing suits. In New York, at least seven counties have filed suits. Salvatore Badala, who filed a suit on behalf of Nassau County on June 12, said his client needs financial help.
“It’s getting worse every day,” he said.