Judge permits pursuit of opioid data
A federal judge in Columbus signed an order Friday allowing communities in Ohio and elsewhere that blame drug companies for the opioid crisis to subpoena a national database that tracks the flow of prescription pills.
Manufacturers and distributors use the Automated Reports and Consolidated Ordering System (ARCOS) to report their controlledsubstance transactions to the U.S. Drug Enforcement Administration.
U.S. District Judge Edmund A. Sargus Jr., chief judge of the U.S. Southern District of Ohio based in Columbus, signed the order for the ARCOS data-collection system subpoena Friday. The DEA is likely to oppose releasing the data, said David J. Butler, who is among the attorneys representing the plaintiffs.
Sargus is scheduled to hear arguments at the next status conference on Dec. 13.
Attorneys for the communities that have sued the companies in federal court in Columbus and elsewhere want to know if the data support their allegations that the companies should have known they were sending an
inordinate amount of drugs to their towns and counties.
Commissioners in Vinton County, which has a population of 13,000, said enough pills were sent there in 2015 that every man, woman and child could have had 105 doses. That number was down to 89 last year, according to information from the Ohio Pharmacy Board.
“It’s pretty obvious” that the three companies are not reporting suspicious orders of oxycodone and hydrocodone, Vinton County Commissioner Mark Fout has said. Distributors Cardinal Health, AmerisourceBergen Corp. and McKesson Corp were named as defendants. AmerisourceBergen and McKesson have operations in central Ohio but are headquartered in other states.
Columbus-based Cardinal Health issued a statement in August saying, “We operate as part of a multifaceted and highly regulated health-care system ... and believe everyone in that chain, including us, must do their part, which is ultimately why we believe
these copycat lawsuits filed against us are misguided and do nothing to stem the crisis.”
Cincinnati, Dayton, Lorain, Parma and Portsmouth are among the 14 plaintiffs from Ohio that filed in the U.S. District Court for Southern Ohio in Columbus. There are an estimated 66 lawsuits filed in 11 federal court districts, including West Virginia, Kentucky, Alabama, Illinois, New Hampshire, Tennessee, California and Washington.
Columbus has not sued, and City Attorney Richard C. Pfeiffer Jr. said Friday the city would not join the other communities in their suit. He declined to give more details, except to say the city is exploring options.
“It could mean anything,” he said.
The plaintiffs also have requested that all of the lawsuits be combined as a “multidistrict litigation” case, or MDL. The MDL rule allows lawsuits that “involve common questions of fact” to be combined into one case
to promote efficiency and consistent court rulings. Test cases would be tried to give other attorneys an idea of how their cases would fare. That could prompt some to settle or withdraw their cases, or continue to trial.
A panel of judges will meet in St. Louis on Nov. 30 to consider the request for a MDL and then decide within two weeks whether to approve it. If an MDL is approved, the panel also will decide which federal district court will get the assignment.
Butler said the plaintiffs prefer the Southern District of Ohio and Sargus because of the judge’s experience with the DuPont MDL. That case involved 3,500 suits claiming DuPont tainted water sources along the Ohio River with a chemical used to make Teflon, sickening residents who contracted cancers and other ailments.
The DuPont case lasted almost four years and involved four trials before DuPont settled for $670 million in February.
“That’s pretty incredible,” Butler said, considering the complexity and number of litigants.
The drug distributors favor a judge in West Virginia where, they said, attorneys for 47 of the 66 cases filed their first opioid cases.
The drug manufacturers argue that an MDL should be heard in a federal court in the Chicago area, where the first and most-advanced federal case filed against the manufacturers is pending, or in New York City, which is centrally located among the companies’ headquarters.
The manufacturers are Purdue Pharma, Purdue Pharma Inc., and the Purdue Frederick Co. Inc.; Teva Pharmaceuticals and Cephalon Inc.; Johnson & Johnson; Janssen Pharmaceuticals; Ortho-McNeil-Janssen Pharmaceuticals and Janssen Pharmaceutica; Endo Health Solutions and Endo Pharmaceuticals; and Allergan Finance.