Epic opioid battle moves to an Ohio courtroom
MCARTHUR, Ohio: The opioid epidemic has affected nearly every aspect of life in Vinton County.
Teachers buy shoes for students whose addicted parents send them to school in footwear held together with tape. Overdose deaths have surged. Foster care is overwhelmed. The jail is bursting at the seams.
The expenses related to caring for the children of drug abusers and locking up drug offenders here eat up about 25 per cent of the Ohio county’s US$ 4 million ( RM15.2 million) annual budget, a hole that it can’t plug. Now, Vinton officials think someone should help foot the bill: Big Pharma.
“It almost feels like Vinton County was preyed upon,” said Lily Niple, who got addicted to prescription opioids here but managed to push through, having been clean for more than two years. “It’s like a huge exploitation of the people here. And it was negligent. Just complete disregard for the future.”
As communities continue to reel and police and emergency responders struggle to keep the addicted alive, the biggest fight against the opioid epidemic is being waged in a federal courthouse in Cleveland, where hundreds of lawsuits brought by cities, counties, Native American tribes and unions have been brought together into one case with a scope that rivals anything seen in the US legal system.
Vinton County and hundreds of other municipalities across the US are suing companies that manufactured and distributed powerful painkillers and others up and down the supply chain, arguing that they knowingly peddled massive amounts of a highly addictive product that set in motion a public health crisis.
The plaintiffs argue that the vast network of opioid businesses should pay for the damage the drugs wrought.
“This is probably the most complex piece of litigation in the history of our country,” said Paul Hanly Jr., one of the lead plaintiffs lawyers.
The consolidated case is being compared with the one that led to hundreds of millions of dollars in settlements against tobacco companies and restricted the sale and marketing of cigarettes. Some of the same tobacco lawyers are now working on the opioids trial.
Plaintiffs are making different, but similar, claims and suing various companies in the drug pipeline. Some allege the drug companies created a public nuisance with their products.
Others argue that deceptive marketing led to an epidemic. Some say state consumer protection laws were violated. Some of the lawyers allege that the distribution system, which includes wholesalers and distributors of powerful narcotics, amounted to a criminal enterprise.
A small group is suing pharmacy benefit managers. Some are suing pharmacies. One lawyer is suing on behalf of children born to mothers who were addicted to opioids.
“We brought suit because we recognised that the companies had to both be held accountable for their long-term marketing practices that really created this market and fostered a misleading attitude toward these drugs as a pain management,” said Edward Siskel, the Chicago corporation counsel.
“And then to make sure that they reform the industry going forward.”
The Justice Department filed a motion this past week requesting that it be allowed to participate in settlement discussions as a friend of the court.
Attorney General Jeff Sessions said the department would seek repayment for the cost of the drug crisis because the federal government has borne substantial expenses.
The sheer number of defendants in the case - more than a dozen - also is staggering and unprecedented. And they could start pointing fingers at one another. They include the manufacturers Purdue Pharma and Janssen Pharmaceuticals, the distributors AmerisourceBergen, McKesson and Cardinal Health and pharmacy benefit managers such as Express Scripts.
Janssen, in a statement, argued that the claims made against the company are “baseless and unsubstantiated” and that its marketing and promotion of the medications were “appropriate and responsible.” Purdue Pharma, in a statement, said it is “deeply troubled” by the opioid crisis and “dedicated to being part of the solution.” Express Scripts said it denies the allegations and “will vigorously defend ourselves.”
The Healthcare Distribution Alliance, a trade group that represents distributors and is not involved in the litigation, said it “defies common sense” to think that distributors are responsible for the number of opioid prescriptions written across the country.
It’s like a huge exploitation of the people here. And it was negligent. Just complete disregard for the future.
Lily Niple, prescription drug addict
“Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation,” said Senior Vice President John Parker.
The litigation comes as people at all levels of government have identified opioid abuse as a major public health - and societal - woe, one that thus far has defied solution. And in many ways, lawyers and legal experts say, the opioid lawsuit is different and far larger in scope than efforts such as the action against Big Tobacco.
The opioid epidemic kills hundreds of people each day, akin to the 1918 flu pandemic. The judge overseeing the case, Dan Aaron Polster of the Northern District of Ohio, said during a January hearing that this scourge was man-made and that lawyers need to reach a resolution quickly, because approximately 150 people are dying each day.
Greta Johnson, assistant chief of staff to the executive of Summit County, Ohio, said the county has spent nearly US$ 200 million during the past decade trying to keep up with the costs of addiction.
That includes a mobile unit for when the morgue is at capacity, as it was five times last year.
“We are literally stacking bodies,” Johnson said. “That was the reason for the lawsuit.”
The crisis also is affecting the national economy, something that could drive a settlement well past record-breaking territory.
The White House Council of Economic Advisers estimates that the economic cost of the opioid crisis was US$ 504 billion just in 2015, or 2.8 per cent of that year’s gross domestic product.
Altarum, a non-profit organisation that studies health care, estimates the opioid crisis cost the country more than US$ 1 trillion from 2001 to 2017.
Attorneys argue that some municipalities have spent tens of millions of dollars trying to fight opioid-related concerns. Health- care costs for municipal employees have sky-rocketed. Jails are packed. Counties have purchased thousands of doses of a drug used to reverse overdoses, and first responders are working overtime, often reviving the same people over and over again.
Mark Chalos, a lawyer who represents communities in Tennessee and some unions, said the toll is tremendous, “a preventable catastrophe . . . made entirely by an industry that operates in plain view.”
The merged federal case is called multidistrict litigation, or MDL. Lawsuits of its kind are rare - some lawyers admit they don’t even know what they are - but are increasing as the economy nationalises and courts are being used to solve problems that the government can’t. Other MDLs include litigation surrounding concussions suffered by NFL players, which was settled for about US$ 1 billion, and lawsuits from the BP oil spill that settled for about the same amount.
Judge Polster has overseen two other MDL cases, including a settlement over the use of an injectable medical dye.
Judges understand that “the MDL is being entrusted with the most difficult problems of our time,” said Jaime Dodge, director of the Institute for Complex Litigation and Mass Claims at the Emory University School of Law. “At some level I think there’s a recognition that in some of these cases it’s not just a dollar or cents, it’s about fixing on-going societal problems.”
How exactly to fix the problem of opioids is the question that Polster and the hundreds of lawyers are trying to answer. The judge has said that he wants to see a speedy settlement and an end to the suffering.
Polster is taking a unique tack - he is not interested in litigation for the sake of litigation. Instead, he wants to help solve the crisis and do something to “dramatically reduce the quantity” of opioids being disseminated, manufactured and distributed, he said in a January hearing. He also wants to ensure the drugs are being used properly.
“My objective is to do something meaningful to abate the crisis and to do it in 2018,” he said.