Hundreds of Opioid Cases Against Pharma Move Toward Resolution—Maybe

April 7, 2018; Washington Post

In Nonprofit Quarterly, we have reported regularly on the opioid crisis, including its mounting costs. Last fall, the White House Council of Economic Advisers estimated that the economic cost of the opioid crisis, including the economic value of lives lost, was $504 billion in 2015, or 2.8 percent of that year’s gross domestic product. At NPQ, we have also reported on the growing number of lawsuits, which at last count exceed 200, including suits filed by tribal nations.

The national costs are extraordinary, but sometimes it helps to break down what these numbers mean in smaller communities. Katie Zezima of the Washington Post highlights the case of Vinton County, Ohio. “Teachers buy shoes for students whose addicted parents send them to school in footwear held together with tape,” Zezima writes. “Overdose deaths have surged. Foster care is overwhelmed. The jail is bursting at the seams.”

The reason, Zezima explains, is that, “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.” She adds, “In Vinton County, where 13,000 people live, “an average of 113.5 doses of opioids were dispensed per resident here in 2012, according to state data.”

Legally, Zezima points out, “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.” The US Justice Department has also requested to participate in settlement discussions as a friend of the court.

“This is probably the most complex piece of litigation in the history of our country,” says Paul J. Hanly Jr., one of the lead plaintiffs’ lawyers. The cases, as NPQ has noted, have many similarities to the 1990s lawsuits against tobacco companies. Indeed, many tobacco suit veterans are involved in the opioid cases. The lawsuits filed are wide-ranging. As Zezima explains:

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.

Another complicating factor is that there are more than a dozen defendants. “And they could start pointing fingers at one another,” notes Zezima. “They include the manufacturers Purdue Pharma and Janssen Pharmaceuticals, the distributors AmerisourceBergen, McKesson and Cardinal Health and pharmacy benefit managers such as Express Scripts.”

Some defendants seem more willing to settle than others. Purdue Pharma, owned by the descendants of Mortimer and Raymond Sackler, is the developer of the drug OxyContin. Purdue has said it is “deeply troubled” by the opioid crisis and “dedicated to being part of the solution.” Others have adamantly denied responsibility.

Judge Dan Aaron Polster of the Northern District of Ohio, who is overseeing the consolidated lawsuits, has called for a quick resolution, noting that with deaths numbering about 150 a day, there is no time to lose. Zezima contends that the documented national economic impact of the opioid crisis “could drive a settlement well past record-breaking territory.”

“The merged federal case is called multidistrict litigation, or MDL,” Zezima explains. These types of lawsuits are rare, “but are increasing as the economy nationalizes and courts are being used to solve problems that the government can’t.”

“Other MDLs,” Zezima notes, “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.”

Jaime L. Dodge, director of the Institute for Complex Litigation and Mass Claims at the Emory University School of Law, observes that, “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.”

What judicial remedies are appropriate is a question that Polster and hundreds of lawyers are trying to answer. Polster, Zezima notes, “has said that he wants to see a speedy settlement and an end to the suffering…he wants to help solve the crisis and do something to ‘dramatically reduce the quantity’ of opioids being disseminated, manufactured and distributed.” Polster himself has said he wants “to do something meaningful to abate the crisis and to do it in 2018.”—Steve Dubb