A corner of West Virginia wrenched by opioid addiction is getting the chance to argue in a courtroom that some of the corporate giants it blames for a public health crisis that left hundreds of people dead deserve to be held accountable.
The city of Huntington and surrounding Cabell County sued the nation’s three largest opioid distributors. No matter the outcome of the federal court trial that opened this month, the verdict is expected to resonate well beyond the industrial region.
The trial in West Virginia, as well as legal proceedings underway in California, could set the stage for resolutions to similar lawsuits brought by thousands of local governments across the United States. Opioid overdoses have been linked to the deaths of nearly 500,000 Americans since 2000 and reached a record of nearly 50,000 in 2019.
Yet the sprawling nature of litigation over the addiction epidemic around the country means it could take years to wrap up, years to get money to communities to expand treatment and to make up for some of the economic losses caused by the crisis.
Tobacco and Asbestos Litigation
The trajectory of the lawsuits is unlikely to mirror the one of the lawsuits that states brought against the tobacco industry during the 1990s. The landmark litigation over what cigarette companies knew about the health risks of smoking resulted in a few sweeping settlements that distributed money to nearly every state, while the opioid cases involve a variety of plaintiffs suing companies up and down the pharmaceutical chain in state and federal courts.
Instead, the lawsuits arising from the use of powerful prescription painkillers could evolve more like the litigation over the cancer risk linked to asbestos, which also involved many corporate players and ended up stretching on for decades.
The Huntington and Cabell County case could lead the distributors that filled orders for OxyContin, generic oxycodone pills and other painkillers to agree to settlements elsewhere in the U.S. Other lawsuits target opioid manufacturers, pharmacies, and even the marketing and consulting firms that helped drugmakers promote the addictive medications.
University of Georgia law professor Elizabeth Burch expects many companies named in the various lawsuits will have to pay up eventually, regardless of the results of individual trials. But rulings for the plaintiffs could speed things up, she said.
“A win really helps the plaintiffs and creates momentum,” Burch said.
State attorneys general, local governments and other entities have filed thousands of lawsuits over the last five years aimed at making segments of the drug industry pay for the lives lost or derailed by addiction. Before April, only one opioid case brought by a government had reached trial; in 2019, on Oklahoma judge ordered Johnson & Johnson to pay the state $465 million. The company is appealing.
Other cases were settled before reaching trial.
For activists, settlements do not equal accountability. They want payments for victims or their families and a detailed accounting of what companies did to spark the crisis. Some also want to see individual company officials charged with crimes.
“You can murder one person and go to jail for life. You murder hundreds of thousands? You just put up some money and you don’t go to jail,” said Cynthia Munger, a Wayne, Pennsylvania, resident whose son is in recovery from opioid addiction. “Where’s the justice in that?”
Most of the pending civil lawsuits focused on drugmakers and distribution companies, but some also target pharmacy chains and more peripheral players.
This year, the consulting firm McKinsey & Company settled with most states for nearly $600 million for its role in advising OxyContin maker Purdue Pharma and others on selling opioids. Massachusetts sued the marketing firm Publicis Health earlier this month, accusing it of designing deceptive marketing schemes to help Purdue sell more OxyContin.
Two major opioid manufacturers — Purdue Pharma and the generic drugmaker Mallinckrodt — are using bankruptcy court to pursue universal settlements. In the Purdue case, state attorneys general are split over whether the proposed deal is sufficient to hold responsible members of the wealthy Sackler family who own the company. Under the proposal, they would give up Purdue Pharma and pay nearly $4.3 billion in cash.
Close to 3,000 lawsuits filed in federal courts have been consolidated under the supervision of U.S. District Court Judge Dan Polster of the Northern District of Ohio. Polster has scheduled a trial for later this year in Cleveland over claims against pharmacy chains. He also pushed for broad settlements while agreeing to hold federal trials across the country.
West Virginia and California
The West Virginia case against the national distribution companies – AmerisourceBergen, Cardinal Health and McKesson – is the first of those cases to go to trial. From 2015 to 2020, more than 700 people died of opioid overdoses in Cabell County, which has a population of under 100,000.
An expert witness for the county and Huntington city used data compiled by the federal government to show that pharmaceutical distributors shipped nearly 128 million doses of prescription opioids to the county from 2006 to 2014 — or more than 140 per resident a year.
The companies say the shipments increased along with quotas set by the U.S. Drug Enforcement Agency and came from orders from pharmacies to fill prescriptions. The distributors are expected to call witnesses on their behalf in the coming weeks.
In California, a state judge is holding a trial on claims from Los Angeles, Orange and Santa Clara counties and the city of Oakland against four drugmakers.
ext month, a case brought by the state of New York and two counties against opioid manufacturers and distributors is scheduled to be the first to go before a jury.
Joanne Peterson, who founded the Massachusetts support network Learn to Cope after seeing siblings struggle with addiction, said activists like her are keeping tabs on all the cases on behalf of people who have been killed or injured by opioids.
“They’ve lost everything, They’ve lost homes, they’ve lost their children. Children have lost parents,” she said.
Jeffrey Simon, a Dallas-based lawyer whose firm is representing more than 50 local governments in opioid cases, said the verdicts in the initial trials will be raised in ongoing settlement talks but may not be the key factor in persuading companies to propose universal payouts instead of taking their chances in trial after trial. .
“The distributors and manufacturers have known for some time that they can’t be going from pillar to post, from one trial to the next,” said Simon, who also helps lead a committee of lawyers suing in state court in Texas.
Some of the companies have indicated they see settling as in their best interests, in part because that route would likely not cost as much as losing in court repeatedly. The three national drug distribution companies, along with Johnson & Johnson, made public last year that they were offering a total of $26 billion over 18 years to settle all the cases they face, with the money going to abate the crisis.
Lawyers for some governments are eager to accept, but significant details remain to be worked out, including how governments that don’t agree to the settlement would be handled.
Having a series of individual judgements rather than big settlements also could be bad for the public, because the money to address the addiction crisis would end up flowing mostly to the first places to get their cases to trial, with little left over for the others.
“Protracted litigation in thousands of cases will never lead to a fair resolution for millions of people in our country who are suffering,” Laura Brewer, a spokeswoman for North Carolina Attorney General Josh Stein, said in an email.
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