- The Washington Times
Thursday, December 27, 2018

States, counties and Indian tribes that sued opioid makers over their role in the overdose crisis are poised to have their day in court in a make-or-break 2019, as pretrial wrangling gives way to showdowns before judges and juries.

When Oklahoma takes on Big Pharma in May, television cameras will give the public a ringside seat to the trial.

“Unquestionably, the issues presented in this matter are of great importance to the citizens of Oklahoma,” a judge wrote in approving Attorney General Mike Hunter’s request to put cameras in the courtroom.

Meanwhile, U.S. District Judge Dan A. Polster has scheduled a series of “bellwether” trials between Ohio counties and opioid makers for September. The trials will set the tone for hundreds of other plaintiffs in the sprawling, multidistrict litigation consolidated in Cleveland under Judge Polster.

The parties are still working through a series of issues, including whether claims on behalf of tens of thousands of babies born with opioid withdrawal will receive a “separate voice” to get adequate damages versus the monetary claims from government plaintiffs. A panel of judges has refused to separate the babies’ cases from the other lawsuits.

“There has to be a recognition of the unique needs of these babies and their independent voice,” said one of the babies’ attorneys, Scott Bickford.

Indian tribes, meanwhile, are waiting for a decision on attempts to dismiss their claims.

“This is a very important issue for Indian country, and people are watching the motions to dismiss very closely,” said Timothy Q. Purdon, who served as a U.S. attorney in North Dakota from 2010 to 2015 and is representing some of the suing tribes.

More than half of the states and hundreds of cities, counties and American Indian tribes have taken the pharmaceutical industry — a major political contributor — to court over the opioids epidemic.

Efforts to stem opioid overdoses, which killed 47,600 Americans in 2017, have centered on ways to expand treatment and rewrite prescribing guidelines so that fewer pills are circulating and the nation can wrap its arms around the crisis.

Yet drug companies face increasing claims that they helped spark the epidemic. State attorneys general, local officials and people on the front lines of the crisis are seeking accountability from the industry.

“Until we get a handle on their greed, we won’t be able to turn the tide,” said Joanne Peterson, who founded Learning to Cope in Taunton, Mass. The nonprofit offers support services for people who have addicted family members.

The lawsuits started as a trickle when Mississippi and Chicago took opioid companies to court over their role in the crisis, hoping to recoup damages to help pay for treatment costs and send the type of message that checked the cigarette industry two decades ago.

Over the past few years, the trickle of lawsuits has become a flood, raising the prospect of a massive settlement.

“The brave ones went first; the more timorous ones are now finally joining the herd,” said Keith Humphreys, a Stanford University professor who tracks the opioids issue.

The lawsuits say manufacturers downplayed the likelihood of addiction and that distributors flooded towns with far too many pills, resulting in legions of Americans who got hooked on their prescriptions and then turned to cheaper heroin, which is now laced with more deadly fentanyl, when their supply ran out.

Judge Polster in Ohio is pushing to reach a global settlement akin to states’ 1998 settlement with tobacco companies over the dangers of cigarette use.

The judge initially scheduled three bellwether cases — one from Cleveland and two from northeastern counties Cuyahoga and Summit — for March, but pushed them to September amid concerns about meeting deadlines for producing evidence. Those trials, if they proceed, would give the other parties a sense of the kinds of damages in play.

While officials in some jurisdictions, including Alabama, have joined the consolidated case, others such as Mr. Hunter in Oklahoma have resisted, saying they aren’t interested in a settlement and want the fight to play out in a public trial at home.

Ohio, which sued in early 2017, is relying on the collective momentum of the pending cases to bring the companies to the table.

The opioid companies say they shouldn’t be held liable for the crisis because plaintiffs’ calls for money to backfill hospital or fire department costs are too attenuated from the industry’s role in providing prescribed medicine to patients for pain relief.

They note that the overdose problem is driven largely by heroin and fentanyl in the illicit market, and they reject comparisons to the settlement with cigarette makers because opioids are ordered up by doctors for chronic pain and are not lifestyle products.

“Purdue continues to have active discussions with attorneys general and is fully engaged with the multidistrict litigation process outlined by Judge Polster to help communities address the opioid crisis,” said Robert Stephenson, a spokesman for Purdue Pharma.

Purdue, the maker of OxyContin, is among the companies being sued by multiple parties.

“We vigorously deny allegations that Purdue acted improperly by communicating with prescribers about scientific and medical information that FDA has expressly considered and continues to approve,” he said. “We believe it is inappropriate to substitute the plaintiff’s judgment for the judgment of the regulatory, scientific and medical experts at FDA. We believe strongly in our defenses and look forward to presenting our side of the story through the appropriate channels.”

But a Kentucky appeals court ruled this month that documents on how Purdue Pharma marketed OxyContin should be unsealed, which may bring insight into how one of the nation’s top opioid makers characterized the addictive nature of its pain pills.

Purdue stopped promoting opioids to prescribers in February.

Leading distributors, meanwhile, recently told Congress that they should have acted faster in cutting off West Virginia pharmacies that received millions of pain pills from 2007 to 2012, though most denied accusations that they fueled the crisis.

Congress has provided several billion dollars in grants to help states expand treatment options, put overdose-reversing drugs in more hands and otherwise combat the crisis. Damages from a settlement or juries could supplement those dollars.

Mr. Hunter has said he thinks the damages could be in the billions of dollars, though he is waiting until pretrial evidence is produced to understand the full scope of potential damages.

“If the damages aren’t in the billions, pharma will just regard it as the cost of doing business and continue with their bad behavior,” said Mr. Humphreys, who added that the fight is about more than cash.

“Although states and cities, of course, like receiving money, the lawsuits will only provide lasting benefits if — as with the tobacco master settlement — they mandate changes in industry practice that lower the incidence of opioid addiction,” Mr. Humphreys said. “Otherwise, the money will only do some transitory good no matter how states and cities spend it.”

Jeff Mordock contributed to this report.

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