What's At Stake In The Opioid Lawsuits

Attorneys for drug companies and local governments from around the country are set to meet in Cleveland for what a federal judge is calling “preliminary settlement discussions” in lawsuits over the opioid crisis.

Judge Dan Aaron Polster has scheduled a pretrial conference Jan. 31. In a recent court filing, he wrote that he’s also invited state attorneys general to attend.

At issue are suits against drug makers and distributors brought by cities and counties from Wisconsin to West Virginia to Ohio.

Southern Ohio An Early Bellwether

When the opioid crisis started to take hold in Ohio, few places had it worse than Scioto County.

The county’s fatal overdose rate for the years 2006 to 2010 was twice the state average—and the highest in Ohio. According to the Ohio Board of Pharmacy, almost 9.7 million doses of opioids were dispensed in the county in 2010—the equivalent of about 122 doses per capita.

Lisa Roberts is with the health department in Portsmouth, the county seat.

“We have a needle exchange program here,” she said. “Every Friday, we see 225 regulars that are IV drug users.”

Early on, she said, the people at the needle exchange were abusing painkillers. Today, that’s changed.

“The same people switched to heroin,” Roberts said. “So now we literally write ‘heroin’ all day, and these are the same people.”

There aren’t as many prescription painkillers dispensed in Scioto County now. But drug overdose deaths there are still above the state average. The number of people who died in 2016 in the county was 60 percent higher than in 2010.

“The prescription painkillers just created this mass of people who are opioid dependent, and the drug dealers recognized that,” Roberts said.  

Scioto County and Portsmouth have joined more than a hundred other jurisdictions nationwide in suing opioid makers and distributors.

Suits Focus On Opioid Marketing And Distribution

One set of lawsuits alleges that distributors breached their duty to monitor and control suspicious orders of pills. Another group of suits accuses drug companies of misrepresenting the risks of opiate addiction, despite knowing better.

“I suspect the defendants are going to feel a lot of pressure to settle this case,” Vanderbilt Law School professor Brian Fitzpatrick said.

The cases have been compared to the multibillion-dollar tobacco settlement of 20 years ago. But Fitzpatrick said there are differences, too: for one, drug marketing is regulated by the FDA in a way that tobacco wasn’t.

“The question is going to be, did their marketing line up precisely with what the FDA had approved, or were they marketing these products off of the uses that the FDA had approved them for?” he said. “And then there’s going to be questions of, did they lie to the FDA? Did they know that these things were more addictive than they let on?”

Lawsuits in federal court allege that the drug makers marketed opioids through third-party groups outside the purview of the FDA.

The opioid cases also appear to be moving faster than the cigarette suits, according to Corey Davis with the Network for Public Health Law.

“It took a long time for the tobacco litigation steamroller to really build up momentum,” Davis said, “whereas you’ve just seen this explosion of these opioid lawsuits, really over the past 18 months.”

Maria Glover, a professor at Georgetown Law School, said plaintiffs would have to demonstrate that companies’ alleged deceptive marketing changed how people use opioids.

“They would have to show that that caused doctors to change their behavior about prescribing, that it changed consumer attitudes toward requesting these drugs,” she said.

The defendants have not yet responded to the suits in court.

A spokesman for Purdue Pharma, one of the defendants, wrote that the company denies the allegations and looks forward to presenting a defense.

“We recognize that the opioid crisis is a significant and complex public health challenge, and we want to be part of the solution,” John Puskar, a spokesman for Purdue, wrote in an email. “We welcome the opportunity to sit down with the court, hear its ideas, and try to be as productive as possible.”

McKesson Corporation, a distributor and one of the defendants, posted a video to its website about the crisis.  

“Every day, opiate abuse affects families and communities across America,” CEO John Hammergren said in the video. He added later, “Some in the media suggest that we’re to blame for the opioid crisis. This is simply not true.”

Judge Polster said everyone shares some responsibility for the crisis, and no one has done enough about it.

“That includes the manufacturers, the distributors, the pharmacies, the doctors, the federal government and state government, local governments, hospitals, third-party payors and individuals,” he said in a hearing on Jan. 9.

Polster said he wants a solution that’s “not just moving money around.” If the parties can’t find a resolution that abates the crisis, he said, he would be ready to try the group of cases filed in the Northern District of Ohio.

“What we've got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly,” Polster said. “Because we all know that a whole lot of them have gone walking and with devastating results.”

What To Do With Potential Settlement?

The mayor of one Ohio plaintiff city said he is hoping for a quick resolution to the case.

Mayor Chase Ritenauer of Lorain said he would like to see some of the claims hashed out in court.

“At the same time, I don’t want something that’s going to last years upon years,” he said. “So my hope is just, the process moves quickly. Whether it’s trial or not, I’d just like to see a quick outcome.”

Ritenauer said the opioid crisis has cost Lorain in police work hours, dispatch time and the purchase of overdose antidote Narcan.

He said he would put settlement dollars back to the areas that bore the costs of the crisis, such as police efforts against drugs.

“Whether it would be specifically opioids or not, I can’t say, but what I would say is, if we did get money, it would be nice to attribute it back to the work our police officers are doing to combat drugs in our community,” Ritenauer said.

And that’s another way an opioid settlement could differ from the tobacco deal, according to Corey Davis, the Network for Public Health Law attorney. States have been criticized for spending tobacco settlement money for purposes other than ending smoking and helping smokers.

The concern with potential opioid settlement dollars, Davis said, “is that they will be spent on other things, that they won’t be used to increase things like treatment capacity, naloxone distribution.”