A federal courthouse in Cleveland has become ground zero in a raging war between the drug industry and communities scourged by mounting overdoses and deaths from opioid abuse.
The big question in this historic, multijurisdictional lawsuit – in which hundreds of lawsuits from cities, counties, Native American tribes and unions have come together in a single, massive case rivaling anything seen in the U.S. legal system – isn’t really whether the drug industry will get off scot-free. That’s unlikely, legal experts told me, given the scale of the opioid epidemic, which policymakers, law enforcement and the medical community are scrambling to address.
Instead, the outcome to watch is how much these opioid makers and distributors end up paying out in a likely settlement – and whether that will help resolve the crisis that claims the lives of more than 42,000 people every year.
States and local governments suing companies that manufacture and distribute powerful painkillers argue they should be held partly responsible for the public health crisis because of how they marketed their products -- and failed to adequately report their abuse to authorities. They want opioid companies to pay for some of the damage caused by their medications.
Richard Ausness, a professor at the University of Kentucky College of Law who has been closely following the cases, told me the lawsuit will come down to what the drug companies are capable of paying. And even if that looks like a big dollar figure, there’s still no guarantee it will be used effectively or even be enough to put a dent in the sweeping epidemic.
“This is a really complex, long-term problem,” Ausness said. “You’ve got millions of people who are addicted and they’re going to stay addicted for the rest of their lives, in all likelihood. This is a small piece of what should be a much broader approach, and you don’t hear people talking about that.”
Jodi Avergun, a former chief of staff of the Drug Enforcement Administration and now a defense lawyer with Cadwalader, Wickersham and Taft, said she thinks there’s “no question” the lawsuits will end in settlements. Opioid makers and distributors are looking to be “part of the solution” by educating doctors about prescribing, working on abuse-deterrent formulas and changing their advertising approach, she said.
“I think that it’s not a matter of winning and completely being exonerated and having no responsibility,” Avergun said. “It’s a matter of looking for solutions they can be part of but not be held liable for causing the opioid crisis.”
Purdue Pharma, one of more than a dozen defendants in the case, has said it is “deeply troubled” by the crisis and “dedicated to being part of the solution.” But two other companies named in the lawsuits, Janssen Pharmaceuticals and Express Scripts, have denied the allegations against them and promised to vigorously defend themselves.
The consolidated case -- presided over by Judge Dan Aaron Polster of the Northern District of Ohio -- is being compared to the one that led to hundreds of millions of dollars in settlements against tobacco companies and restricted the sale and marketing of cigarettes, my colleague Katie Zezima writes in a fascinating look at the case’s ins and outs and how a particularly affected Ohio county got involved.
It's hard to overstate the complexity of the joined lawsuits, with plaintiffs making different but similar claims and suing various companies in the drug pipeline. (The Health 202 wrote in February about similar cases that dozens of states are pursuing in state courts.) “This is probably the most complex piece of litigation in the history of our country,” Paul Hanly Jr., one of the lead plaintiffs lawyers, said.
“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,” Katie writes.
“Some of the lawyers allege that the distribution system, which includes wholesalers and distributors of powerful narcotics, amounted to a criminal enterprise,” she continues. “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.”
The federal government is getting involved, too. Last week, the Justice Department filed a motion requesting it be allowed to participate in the settlement discussions as a “friend of the court.” The agency is seeking repayment for the epidemic’s cost because it has posed substantial expense to the U.S. government, according to Attorney General Jeff Sessions. Other members of Trump's administration are also taking action where they can; Surgeon General Jerome Adams issued a rare advisory last week for Americans to get trained in administering the overdose reversal drug naloxone.
But plaintiffs are disagreeing among themselves about how to proceed, Katie reports. While some would prefer a quick settlement, others want to see it proceed to court and a jury. The lawyers are working toward a settlement, but are also pursuing the possibility of litigation on another track.
Polster, who has scheduled the next settlement hearing for May, wants to see a speedy settlement and an end to the suffering. “Polster is taking a unique tack — he is not interested in litigation for the sake of litigation,” Katie writes. “Instead, he wants to help solve the crisis and do something to ‘dramatically reduce the quantity’ of opioids being disseminated, manufactured and distributed, he said in a January hearing.”
“My objective is to do something meaningful to abate the crisis and to do it in 2018,” Polster told Katie.
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— Katie also reports on growing concern about clean drug tests, as rates of cocaine and methamphetamine abuse soar and recreational marijuana use becomes legal in nine states and the District. “While people have long tried to cheat drug exams with an array of creative methods — such as providing other people’s urine, attempting to flush their systems with gallons of water or using herbal remedies — authorities say synthetic urine has become the new go-to trick,” she writes.
States are enacting laws to ban the sale of fake urine, which retails for about $17 to $40 in head shops, truck stops and on the Internet, and is easy to purchase. The substance — made from chemicals and, some claim, uric acid — goes by names including “Monkey Whizz” and “UPass.” Laws making it illegal to sell or use synthetic urine or cheat on a drug test are on the books in at least 18 states. Indiana and New Hampshire banned synthetic urine last year. Bills to do so were introduced this year in Missouri and Mississippi.
Companies nationwide have reported having trouble finding workers who can pass drug tests, Katie writes. The Federal Reserve reported in a “beige book” survey of economic activity last year that manufacturers have had difficulty hiring experienced or qualified employees, “with some citing candidates’ inability to pass drug tests or to consistently report to work.”
AHH: President Trump’s pick to head the Department of Veterans Affairs says he believes he’s “got what it takes” to lead the agency. In his first phone interview since being nominated, White House physician Ronny Jackson told the Lubbock Avalanche-Journal (a paper based near his hometown of Levelland, Tex.) that he’s been “in leadership school for 23 years now." "And I've been able to rise to the level of an admiral, a flag officer in the Navy. I didn't just stumble into that. So I've gotten a lot of leadership background," Jackson said.
Jackson was responding to criticisms of his lack of management experience and how that could affect his ability to lead one of the largest federal agencies. “I think I’ve got what it takes, and you know, I don’t buy into that argument at all,” he said.
Jackson noted he served as deputy director of the White House medical unit for a year, was then made acting director, and later appointed by President Obama as his personal physician. “I kind of got catapulted toward the top of the docs who were currently there, as far as seniority goes,” Jackson said.
“I take care of basically the entire White House compound. I oversee all of the care here,” Jackson told the paper. “We do urgent care here, anybody who is injured or they are sick, they come see us. We do a lot of travel medicine, because, of course, we have a lot of travelers here, so immunizations and travel preparation, we do all of that...And we do, basically, a lot of primary care as well, and I take care of and end up being a primary-care provider for most of the senior folks in the White House who work in the East Wing and the West Wing, the president’s senior staff and cabinet members.”
OOF: Jackson could be forced to pass up a pending military promotion and an estimated $1 million in future retirement income if he's confirmed as VA secretary, The Post's Andrew deGrandpre reports. Jackson, a one-star admiral and the president’s White House doctor, had been nominated by Trump for promotion to be a two-star admiral in the days leading to VA Secretary David Shulkin’s departure late last month.
Now the White House has said Jackson intends to remain on active duty until the Senate confirms him to become VA secretary, at which point he would retire from the service. The dual nominations and a lack of clarity from the White House have left lawmakers flummoxed about how to proceed, said a Senate aide who spoke on the condition of anonymity to offer a candid assessment of Jackson’s unusual circumstances.
"The White House did not respond to questions seeking clarity on whether it intends to deconflict Jackson’s two nominations, if the admiral has discussed his pending promotion with Trump or if it’s the president’s goal for Jackson to be promoted before he joins the Cabinet," Andrew writes.
OUCH: A Republican Virginia state senator said he would be willing to buck his party and vote to expand Medicaid, a goal Democrats have been working toward for years, our colleague Laura Vozzella reports. State Sen. Frank Wagner of Virginia Beach said he supports letting more poor people enroll in Medicaid on two conditions -- that it's structured so recipients don't suddenly lose coverage if their earnings rise and that a plan includes a tax credit or some other help for middle-income people who are struggling to pay soaring premiums and co-pays.
Wagner’s vote could break a stalemate in the Virginia General Assembly over Medicaid and the state’s budget, which could stop a government shutdown and deliver a victory to Democratic Gov. Ralph Northam. Democrats need two Senate Republicans to pass Medicaid expansion as part of the state budget. The House passed a version of Medicaid expansion earlier this year. The legislature is scheduled to meet Wednesday for a special session on the budget.
— Don't expect another drama-filled year of Obamacare repeal-and-replace efforts. Congress may not take any significant legislative action for the rest of the year now that it has passed a $1.3 trillion spending bill. There are no hard deadlines, for one thing, plus the midterm elections are approaching, The Post’s Mike DeBonis reports.
“The lack of high-stakes legislating — such as last year’s all-hands-on-deck GOP efforts to undo the Affordable Care Act, which ultimately failed, and pass a landmark tax overhaul, which is now law — is prompting grumbles from rank-and-file Republicans eager to do more, with their majority at stake in November’s midterm elections," Mike writes. “Instead, the House is preparing to take a largely symbolic vote on a constitutional amendment requiring a balanced federal budget and to try to reverse some spending while also finishing up a banking deregulation bill and drafting legislation to address the opioid crisis."
“It was a darn good year — taxes were down, regulations were down, the economy was growing,” said Freedom Caucus co-founder Rep. Jim Jordan (R-Ohio) told Mike. “But 2018? We’ve done one [spending] bill that the American people strongly dislike, and certainly Republican voters strongly dislike. . . . So, yeah, we got to do more this year.”
—A few more good reads from The Post and beyond:
- Pulse: The Atlantic Summit on Health Care.
- The Heritage Foundation holds an event on faith-based adoption and foster care.
- The Center for American Progress holds an event on health care and work requirements on Tuesday.
- The House Energy and Commerce Subcommittee on Health holds a hearing on the opioid crisis on Wednesday.
- The House Oversight Subcommittee on Healthcare, Benefits, and Administrative Rules holds a hearing on the opioid epidemic on Wednesday.
- The Senate Health, Education, Labor and Pensions Committee holds a hearing on the opioid crisis on Wednesday.
- The NIH director Francis Collins will testify before the House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies on Wednesday.
- The House Oversight Subcommittee on Government Operations holds a hearing on “improper payments in state-administered programs” on Thursday.
Here's why this year’s White House correspondents’ dinner is so weird, again:
Late night host Jimmy Kimmel and Fox News anchor Sean Hannity have been feuding since Kimmel joked about the first lady’s accent on April 2:
On Saturday Night Live, Alec Baldwin returned as President Trump in the cold open: