As the Opioid Epidemic Rages, Cities Are Suing Big Pharma to Foot the Bill

By Katie Zezima, The Washington Post

09 April 18

 

he 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 percent of the Ohio county’s $4 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 U.S. legal system.

Vinton County and hundreds of other municipalities across the nation 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 J. Hanly Jr., one of the lead plaintiffs lawyers.

The consolidated case is being compared to 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 recognized 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 N. 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.

“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 $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 $504 billion just in 2015, or 2.8 percent of that year’s gross domestic product. Altarum, a nonprofit organization that studies health care, estimates the opioid crisis cost the country more than $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 skyrocketed. 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.”

MDLs rare, but increasing

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 nationalizes 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 $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 L. 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 ongoing 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.

It is not the first time that some of the companies have been pursued in the courts. In 2003, Hanly sued Purdue Pharma, which makes the powerful synthetic opioid painkiller OxyContin. The company paid out $600 million, and three executives pleaded guilty to criminal charges that they misled doctors, regulators and patients. But the epidemic raged on.

The first lawsuits in the current case were filed in 2014, when Chicago and Orange and Santa Clara counties in California sued the drug industry. The scattershot efforts were consolidated by a judicial panel in December, easing case management and streamlining the effort, allowing, for example, lawyers to depose an executive once for use in all the lawsuits. Some municipalities in the combined case, including Chicago and Montana, were forced into it against their wishes.

Some attorneys general are pursuing separate litigation in state courts. So are some municipalities, including Harris County, Tex., which argues that a local court is the best venue.

Not surprisingly, disagreements about how to proceed have surfaced among plaintiffs. Some would prefer a speedy settlement, while others want to see the cases proceed to court — and a jury.

Polster wrote in public minutes of a closed-door settlement conference meeting last month that the parties “identified barriers to a global resolution.” The lawyers are now working toward a settlement but also pursing the possibility of litigation on another track. They are preparing for discovery and making known which cases they would like to try first. Polster has put attorneys on an aggressive timeline, scheduling another settlement hearing for May.

Because Polster has issued a gag order, lawyers declined to discuss a possible settlement or case strategy. The judge also put a protective order on what lawyers say is likely the linchpin of the case: information from a database kept by the Drug Enforcement Administration that monitors the flow of prescription painkillers from manufacturer to distribution point.

After initially resisting, the DEA said it would disclose some of the data, including identifying the manufacturers and distributors that sold 95 percent of the opioids in each state from 2006 to 2014. Lawyers say the full set of data could provide a road map for the crisis, perhaps showing a correlation between where the drugs flooded and where people died. Congress also is keen on obtaining the database. Polster thus far has sealed any data released to the parties.

The data is confidential, but some information that has been released and analyzed is staggering: In two instances, millions of pills were shipped to pharmacies in tiny West Virginia towns.

A 'party thing' turns to addiction

In Vinton County, where 13,000 people live among the rolling hills and creeks, an average of 113.5 doses of opioids were dispensed per resident here in 2012, according to state data. A sign outside the county’s one pharmacy advertises safe prescription week.

Lily Niple was one of the county residents ensnared in the crisis. She started using pills as a “party thing” on the weekends while she was in college and was waitressing at a bar. She stopped using when she became pregnant, but she started again after her daughter was born three months premature and she was prescribed opioids after a difficult delivery. She continued to use opioids during two subsequent pregnancies and got unexpectedly pregnant a fourth time.

Family members hung a piñata from a tree for her third child’s first birthday party. Driving around alone after the party, she spotted the heavy-duty yellow rope still hanging from the tree, and she contemplated hanging herself from it. But she was pregnant and thought her unborn child deserved to live, so she drove herself to a hospital. She found sobriety, again, but then relapsed after breaking a rib.

She quit drugs for good in 2016, using a long-acting medication designed to wean substance abusers off opioids and an outpatient rehab program she was ordered to attend as a condition of parole after being convicted of theft. She is now raising her children — ages 4, 5, 8 and 11 — and works with others in the county who are addicted.

“I realize I had a unique position to be impactful in my recovery,” she said.

Opioids are taking a large toll on the children in Vinton; in 2016, there were 202 drug-related child protective services investigations, the vast majority of which involved opioids, said Trecia Kimes-Brown, the county prosecutor. A principal said that a 7-year-old sat in her office and described how to properly shoot heroin — something the child learned from watching it happen at home.

Other children are living in households made chaotic by drugs, forcing teachers to become both counselors and educators. Many students live with grandparents because their parents are addicted to drugs. Children’s services workers are suffering from trauma because of the damage they see, and they don’t know what horrors they will encounter with each home visit.

“Our kids are in such survival mode,” said Mary Ann Hale, assistant superintendent for the county schools and principal at West Elementary. “We have to unpack it at the schoolhouse door and pack it back up before we can even get to the three Rs of reading, writing and arithmetic.”

The cost of drug abuse is so straining Vinton that voters enacted levies on property owners to fund services for children and seniors.

“We can’t wait on anybody to fix this for us,” said Jody Walker, executive director of South Central Ohio Job and Family Services.

The county hired a mental-health deputy to work with people with substance-abuse issues and recently obtained a grant for a drug court. It is working on opening recovery housing. Residents are proud to live here, and officials said they are working tirelessly to tackle the problems while being as innovative as they can.

“Imagine what we can do if we had the abatement money from the lawsuit,” Kimes-Brown said.

Until then, there is scant funding. The jail is so crowded with female inmates that the sheriff’s office often has to negotiate delicate swaps: When a woman is arrested, deputies call Kimes-Brown and ask her to release someone to free up a slot. One night, the sheriff’s office called 23 jails in southern Ohio trying to find space for a female arrestee. Walker said the agency has to make difficult choices each day, like whether to spend thousands of dollars to treat bedbugs in the home of parents who are addicted to drugs.

Sheriff Shawn Justice has worked for the department since 1993. Legally prescribed opioids, he said, have led to abuse, which in turn has led to a rash of illegal consequences, including theft and burglary. People steal painkillers from nursing homes or possessions from their parents to fund black-market purchases.

Pills, he said, led to heroin. There’s now an influx of crystal meth, which is causing people to be extremely violent. He is supportive of the lawsuit and wants to see those in the supply chain pay for what opioids did to his county.

“You’ve got to hold them accountable for it,” Justice said.