The city of Laurel and Wicomico County filed suits on July 9. Calvert County did it a couple of weeks before. In the past two years, more than two dozen cities and counties in Maryland, as well as the state, have sued opioid makers, distributors and others.
They join Baltimore City and the area’s counties and more than 2,000 other governments in filing suit in state and federal courts around the country that allege the pharmaceutical companies had a role in the addiction and overdose crisis that has overwhelmed public resources.
There are mixed early results. Purdue Pharma, the maker of the widely distributed OxyContin, settled with the state of Oklahoma in March for $270 million. However, a suit in state court in North Dakota was dismissed recently, fueling resistance to other litigation from manufacturers and others.
Observers and participants suggest that the remaining cases may become part of a large and unprecedented settlement that widely eclipses the settlement with tobacco companies more than 20 years ago — but no one knows exactly how or when that could be achieved.
“It is the million-dollar question, and people all over country are asking it,” said Maryland’s Attorney General Brian Frosh, who has joined most state attorneys general in taking civil action. “The crisis has been nationwide and the lawsuits so far-flung that it’s very difficult to figure out how to resolve them in one fell swoop.”
Frosh said there is communication but not really coordination so far among the states, which have largely filed actions in state courts, and localities, which have largely turned to federal ones.
Determining fair distribution of any funds just in Maryland would be complicated, he said.
The number of fatal overdoses related to opioids, first with prescription painkillers and later with illicit heroin and fentanyl, has been staggering. Overdose deaths in the state exceeded 2,000 in 2018, with the majority attributed to opioids, according to the state Department of Health.
There were more than 400,000 opioid-related deaths across the country from 1999 through 2017, according to the U.S. Centers for Disease Control and Prevention.
Total costs from the epidemic exceeded $1 trillion from 2001 to 2017, according to one estimate from Altarum, a nonprofit health research and consulting outfit. Another $500 million in costs was expected by 2020.
As governments seek to recoup spending on treatment, overdose remedies, education, law enforcement and other expenses, as well as pay for the ongoing epidemic, they have turned to the courts. There are some 30 defendants listed in court documents, encompassing the entire prescription opioid supply chain.
Purdue Pharma, the target of many suits, has denied wrongdoing in making and marketing the drug, approved by the U.S. Food and Drug Administration for severe pain.
“These complaints are part of a continuing effort to try these cases in the court of public opinion rather than the justice system,” the company said in a statement. “The states cannot link the conduct alleged to the harm described, and so they have invented stunningly overbroad legal theories, which if adopted by courts, will undermine the bedrock legal principle of causation.”
John Parker, a spokesman for the Healthcare Distribution Alliance, a trade association representing wholesale distributors, questions why firms it represents such as McKesson, Cardinal Health and AmerisourceBergen were named in lawsuits.
“The idea that distributors are responsible for the number of opioid prescriptions written defies common sense and lacks understanding of how the pharmaceutical supply chain actually works and is regulated,” Parker said. “Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation.”
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052919 Purdue Pharma Amended SOC (PDF)
052919 Purdue Pharma Amended SOC (Text)
Still, all the suits put the companies named in a bind.
They can’t let each case go to trial or settle them all. That would take “years and years” and companies would run out of money, said Abbe R. Gluck, a law professor and the faculty director of the Solomon Center for Health Law and Policy at Yale Law School.
Gluck said one big settlement is likely, either through a bankruptcy process with the companies or through a special court process designed for complex cases called multidistrict litigation. About 1,600 federal cases have been put in this category in a federal court in Cleveland. The remaining 400 cases are in state courts and also could be part of a settlement forged by a designated group of negotiators.
The legal landscape is uncharted, she said. The closest comparison is with litigation against tobacco companies, a landmark 25-year, $246 billion settlement reached in 1998 among the four largest U.S. tobacco companies and attorneys general from 46 states.
It was far smaller yet still complex, and faced criticism for the size of payouts to lawyers and the lack of funds that actually went to smoking cessation or related health programs. Local officials didn’t see much money either, leading to the large number of direct suits this time against so many defendants, Gluck said.
That means there will be more sticking points, she said. Companies that don’t believe they played a meaningful role in diversion of legal drugs that led to addictions will balk at a compromise. None of the companies will settle without knowing there won’t be more lawsuits.
“In order for the defendants to settle, they’ll want to get their arms around their liability, and to do that there has to be a way to bring as many parties together in one place in a single global settlement,” Gluck said. “There will be challenges. But I think everyone is resigned to the idea that there will be a settlement.”
Lawyers who have invested time and resources into investigating the matter and bringing the litigation may be wary of handing over control. Some have sought out local officials that could not easily bring a lawsuit on their own.
Attorneys from the Dallas-based firm Fears Nachawati have been making presentations to many Maryland local governments over the past year and a half. About 18 agreed signed on with the firm, the most in the state.
Jonathan Novak, one of the firm’s lawyers, said he believes he had credibility as a Maryland native. He also was a U.S. Drug Enforcement Administration litigator.
The firm has 74 cases in Maryland and 10 other states.
“We have had to do a little hand-holding; this is the most complicated litigation ever done,” Novak said. “It was a tough sell in some cases. But in my opinion, this is the only way any of our communities will be able to resolve the issues and deal with the problem.”
The money, he said, should be used to make up for spending already made, though many localities don’t have official tallies, and addressing the ongoing crisis.
In Howard County, which filed a case against the opioid industry in state court in May, officials alleged drug makers made a business decision to promote opioids “deceptively and illegally to significantly increase sales,” and “rampant use, overuse and abuse” of opioids was a consequence.
The county reported more than 130 overdose deaths since 2016.
“That’s more than 130 of our brothers and sisters, mothers and fathers, sons and daughters. These tragedies are unacceptable,” said Calvin Ball, county executive, in a statement when the suit was filed. “We believe opioid companies have, for too long, knowingly deceived the public and manufactured a public health crisis. We must put a stop to their model of profiting off of our neighbors and loved ones.”
