Drugmakers seek to have opioid suit tossed

Major opioid manufacturers have asked a judge to throw out the first test case of whether they must pay for the nation's drug crisis, arguing that two Ohio counties cannot prove the drug companies' actions were responsible for overdose deaths or other harms, newly unsealed court documents show.

Lawyers for Purdue Pharma, Mallinckrodt Pharmaceuticals and other drug companies contend that Cuyahoga and Summit counties cannot sufficiently connect the tens of billions of legal painkillers the companies produced to fatalities and addiction. Nor can the counties show that drug company sales calls caused doctors to overprescribe the medications, they said.

The Ohio counties "have no evidence that their alleged injuries were proximately caused by the collective 'manufacturers' ... rather than by criminal cartels trafficking in deadly street drugs," the manufacturers argued in criticizing expert testimony presented by lawyers for the two counties.

The request that federal judge Dan Polster toss out the lawsuit is a common pretrial tactic in civil litigation. More significantly, it is the first full public airing of the legal defense manufacturers are likely to offer in the landmark lawsuit brought by nearly 2,000 cities, counties and other groups across the country, the largest civil case in U.S. history. Polster has urged all sides to settle the case.

The drug producers' motion targets the two counties because they are scheduled to go to trial first, in October, as a test case in the enormous lawsuit.

The counties will try to prove the drug companies engaged in a civil racketeering enterprise. A person with knowledge of the defense strategy said the plaintiffs need to show that the companies were conspiring with one another and acting in concert. That's difficult to do because the companies are fierce competitors, said the person, who spoke on the condition of anonymity because Polster has warned people associated with the case not to comment on it. The idea that the defendants conspired is not consistent with the reality of their business.

The person said the plaintiffs have not been able to tie alleged false or misleading promotion by drug companies to harm in communities and are relying on statistical data that the defendants believe is poorly modeled.

The municipalities are seeking billions of dollars to help pay for the costs of treatment, emergency aid and law enforcement in an epidemic they claim started when drug companies ignored clear signs that opioids were being diverted to the black market.

More than 200,000 people have died of overdoses from legal painkillers in the last two decades. A similar number have succumbed to heroin and illicit fentanyl in the second and third waves of the epidemic.

The municipalities' claims against drug producers, distributors and retailers were made public last Friday. They argued that some of the biggest and best-known companies in the United States participated in what amounts to a civil racketeering enterprise when they sold vast quantities of drugs that devastated communities across the country. Cuyahoga and Summit also argue that drug distributors created a "public nuisance" that endangered the health of their residents, a problem those companies must pay to help abate.

The Washington Post also revealed a previously undisclosed database maintained by the Drug Enforcement Administration last week. It shows that the drug industry inundated consumers with 76 billion opioids between 2006 and 2012, many more than experts had previously believed.

But in court, the question will be whether the two counties, and future plaintiffs, can meet the legal standards necessary to prove the drug companies' regulated commerce in painkillers was so excessive that it caused the counties harm. In their newly revealed court filing, the manufacturers argued forcefully that the plaintiffs fall far short of proving their case.