Fighting back in court
250 cities, counties and states have sued opioid makers and marketers.
Opioid litigation, which started as a trickle, reached a flood last year when about 250 cities, counties and states sued opioid makers, wholesalers, distributors and marketers.
The lawsuits accuse the companies of misleading health care professionals and the public by marketing opioids as rarely addictive and a safe substitute for non-addictive pain medications, such as ibuprofen.
The companies deny the claims and say litigation should be halted until the Food and Drug Administration-ordered studies on the long-term risks and benefits of opioids are completed.
Experts say the sheer number of opioid lawsuits could lead some companies to settle.
“The litigation costs must be killing them,” said Richard Ausness, a professor at the University of Kentucky College of Law. “The problem is that a settlement with some plaintiffs will only cause more plaintiffs to sue.”
Bloomberg has reported that Purdue Pharma, whose drug OxyContin jumpstarted the opioid epidemic, is proposing a global settlement in an attempt to end litigation. Purdue would not comment.
A new wave of litigation from Detroit and other Michigan cities and counties accuses companies of violating the Racketeer Influenced and Corrupt Organizations Act, a law created to fight organized crime.
The litigation alleges Purdue and other opioid makers “pushed highly addictive, dangerous opioids, falsely representing to doctors that patients would only rarely succumb to drug addiction.”
“We are deeply troubled by the opioid crisis, and we are dedicated to being part of the solution,” Purdue responded in a statement. “We vigorously deny these allegations and look forward to the opportunity to present our defense.”
The federal judge overseeing about 200 lawsuits against opioid makers says he would rather curb the opioid epidemic than referee the litigation.
“About 150 Americans are going to die today, just today, while we’re meeting,” U.S. District Judge Dan Polster of Cleveland told the parties this month. “And in my humble opinion, everyone shares some of the responsibility, and no one has done enough to abate it.”
Paul Hanly, whose New York City law firm, Simmons Hanly Conroy, is involved in 150 lawsuits, said governments “are learning that litigation may be the only avenue for them to recover some of the massive increased expenses related to the epidemic,” including the costs connected to emergency medical services, mental health, the judicial system, law enforcement, child services and rehabilitation.
With each new lawsuit, governments that have not sued are “taking a hard look at their rights and their obligations to their taxpayers,” he said.
Some hospitals are suing, too. They say they have been forced to treat patients for opioid addiction and overdoses as well as babies born with opioid addiction — treatment that is often lengthy and uncompensated.
In the latest wrinkle, several West Virginia cities have sued the Joint Commission, which accredits and certifies health care organizations and programs in the United States, accusing the non-profit of spreading “misinformation” to health care professionals about the risks of opioid addiction.
In 2001, the commission began requiring hospitals to assess all patients for pain on a scale of 1 to 10, which some said caused more doctors to prescribe opioids.
Purdue gave the commission a grant to produce a pain assessment and management manual, which told health care providers, “There is no evidence that addiction is a significant issue when persons are given opioids for pain control.”
Commission officials have denied that change encouraged doctors to prescribe more opioids, blaming drug trafficking as well as diversion and abuse by patients.
This month the commission released new pain management standards, which require hospitals to have leaders responsible for “pain management and safe opioid prescribing.” Those hospitals also must identify high-risk patients and make prescription drug monitoring programs available to those prescribing opioids.
In addition to litigation, congressional investigations are examining such questions as how drug wholesalers sold more than 780 million painkiller pills in six years to a single pharmacy in Kermit, W.Va., where fewer than 400 people live.
Every state attorney general has either filed a lawsuit against opioid makers or is involved in investigating whether drugmakers misled health care providers about the addictiveness to opioids. Their offices have issued subpoenas for records from those companies.
“About 150 Americans are going to die today, just today, while we’re meeting. And in my humble opinion, everyone shares some of the responsibility, and no one has done enough to abate it.” Dan Polster U.S. district judge, Cleveland