The Washington PostDemocracy Dies in Darkness

As lawyers zero in on drug companies, a reckoning may be coming

Christine Gagnon of Connecticut protests outside Purdue Pharma’s headquarters in Stamford in August 2018. (Jessica Hill/Associated Press)

For two decades, as 200,000 opioid overdose deaths piled up across America, there was always someone else to blame. Families blamed drug companies. Drug companies blamed doctors. Everyone blamed the government.

More than half the public continues to see drug addiction as a moral failing, blaming substance abusers themselves for the epidemic, at least in part, according to recent polling.

But now the effort to hold someone to account for the worst drug crisis in U.S. history is narrowing to a few dozen drug companies whose day in court has come or will soon arrive. Virtually every state and nearly 2,000 towns, cities and counties have demanded those firms, which include some of America’s most trusted brands, be forced to pay up to help stop the epidemic.

“It is a drug company crisis, and it begins and should end with them,” Oklahoma attorney Bradley Beckworth told a judge this week in the first state drug trial of the opioid era. The state is seeking $17.5 billion from the health care conglomerate Johnson & Johnson to address the costs of addiction.

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Five years after the earliest lawsuits were filed, that trial concluded Monday, with a judge expected to decide by the end of August whether the company had a major role in the epidemic. Test cases of how municipalities may fare in federal court — involving two Ohio counties — are scheduled for trial in October.

Lined up behind them are 48 more trials in state courts around the country, with start dates beginning early next year, according to Mike Moore, an attorney aiding four of those states.

As that litigation proceeds, negotiations for a possible nationwide settlement are continuing. Moore is hopeful there will be an all-encompassing deal this year, though he predicts it will be nowhere near the size of the $206 billion agreement in the landmark 1998 settlement with tobacco companies.

“I think people are coming to their senses,” said Moore, who led the legal battle in that case. “People are realizing that this is a public health crisis and not so much about litigation and lawyers. It needs to be treated as ‘we have a public health crisis.’ ”

Though the litigation is following the trail blazed by the tobacco and asbestos cases of the last century, plaintiffs are seeking even more staggering sums: $17.5 billion in sparsely populated Oklahoma; $7.2 billion for Cuyahoga and Summit counties in Ohio; $483 billion for a nationwide settlement, according to an expert witness for plaintiffs cited by Reuters.

Nora Freeman Engstrom, a professor at Stanford University Law School who is closely monitoring the litigation, said such demands may be unrealistic.

“The tobacco manufacturers came to the settlement table backed by massive financial resources,” she said. “Opioid manufacturers’ pockets are shallow by comparison. You can’t get blood from a turnip, and at a certain point, financial limitations will affect settlement options.”

Tobacco revenue exceeded $93 billion in 2016. U.S. sales of prescription opioids peaked at around $8 billion to $9 billion earlier this decade, according to industry data.

The economic damages from tobacco use were also far greater than for opioid abuse. If the same payout-to-damages ratio from that agreement were applied to opioids, a global settlement might fall in the range of $30 billion to $55 billion, according to a recent analysis by Nephron Research, an independent health care investment research firm.

On Monday, The Washington Post published previously undisclosed government data that revealed the breadth of the epidemic of legal opioid use. A handful of companies saturated the country with 76 billion pain pills between 2006 and 2012, fueling the prescription opioid epidemic, the data shows.

The numbers reveal “clear heinous, criminal distribution that has visibly contributed, if not caused, the crisis our country is facing with opioid use disorder,” the anti-drug group Shatterproof said in a statement. “Sadly, we cannot change the past. We can only focus on the millions of Americans who now have OUD and their families, and create strategies and actions that will prevent this for generations to come.”

Purdue Pharma ranked fourth on the government database of manufacturers of products containing oxycodone and hydrocodone. Johnson & Johnson is not on the list of companies that made those products from 2006 to 2012.

By the end of summer, there may be some indication of whether the companies will have to help abate the drug crisis. In the first state case to come to trial, Oklahoma Attorney General Mike Hunter (R) asked a judge to make Johnson & Johnson pay as much as $17.5 billion over 30 years to stem the epidemic through treatment, education, prevention and other measures.

Oklahoma already has settled out of court with two other defendants, securing $270 million from Purdue, most of which went toward a treatment and research center, and $85 million from Teva Pharmaceuticals.

Purdue said at the time of the March settlement that it sees “this agreement with Oklahoma as an extension of our commitment to help drive solutions to the opioid addiction crisis.”

Teva said it “has not contributed to the abuse of opioids in Oklahoma in any way” when it settled in May.

West Virginia, which has the nation’s highest rate of opioid overdose deaths, has also settled with some of the drug distribution companies that poured opioids into the state, recouping $84 million in recent years.

But those results don’t mean settlements or court victories for plaintiffs are likely. Johnson & Johnson and many drug manufacturers and distributors populate the Fortune 500 list of America’s largest companies. They have steadfastly denied culpability for the drug crisis and have the resources to wage protracted legal battles.

Johnson & Johnson, for example, has paid a small army of attorneys since Oklahoma filed its lawsuit in 2017, opting to battle the state in a seven-week trial that just ended in a Norman courtroom.

“Johnson & Johnson has been, in a bunch of cases, not afraid to litigate,” said Alexandra Lahav, professor at the University of Connecticut School of Law. “This is not the only mass tort they’re dealing with, and they have been pretty aggressive in their litigation strategy,” she said, citing the company’s defense against lawsuits from women who claimed that asbestos in the company’s talc products gave them cancer.

As Purdue and Teva reached out-of-court settlements with Oklahoma (both denied wrongdoing), Johnson & Johnson took its chances at trial. It rejected state claims that it had minimized the risks of its opioid products and that it was a “kingpin” supplier of raw narcotic ingredients for other manufacturers.

“When you’re right, you fight,” the company’s lead attorney, Larry Ottaway, told Judge Thad Balkman more than once during the trial.

The major manufacturers, distributors and dispensers of opioids, including Johnson & Johnson, have offered a variety of defenses: They sell legal, highly regulated painkillers to willing customers; the Drug Enforcement Administration sets annual quotas for the quantities each company can produce; doctors sparked the epidemic by overprescribing opioids to address their patients’ pain.

Whichever side loses may be inclined to appeal.

Moore, for one, believes that public revelations of the astonishing numbers of painkillers shipped to communities across the United States will put added pressure on companies to settle.

“What they have done over all these years is now front-page news,” he said. “There’s no place to hide. It is the oversupply that caused the opioid epidemic. No doubt.”

Lahav is not so sure. At the moment, she said, there is too little information from the Oklahoma or Ohio cases to predict anything. And every case involves different plaintiffs, companies, legal theories and laws.

In May, a North Dakota judge threw out a government lawsuit against Purdue, rejecting the same legal theory that Oklahoma used in its trial.

“Everybody’s got their own laws. They’ve got their own lawyers, and they’ve got their own agendas,” she said. “It’s really an interesting thing how they’re going to herd all these cats together.”

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