For two Ohio counties, the devil is in the details in a high-stakes, bellwether trial starting today that will decide to what extent opioid distributors can be held responsible for the country’s drug abuse crisis.
Arguments begin this morning before U.S. District Court Judge Dan Polster and a 12-person jury in the first federal trial of the U.S. opioid epidemic, which has claimed more than 400,000 lives and left millions of people addicted. There was an 11th-hour effort to reach an agreement, but those talks stalled over the weekend.
The cases from around 2,400 counties, cities and states suing painkiller manufacturers, wholesalers and dispensers have been consolidated into an enormous “multidistrict litigation” before Polster. The judge has chosen two Ohio counties as “bellwether” plaintiffs to test how other lawsuits might go and to encourage settlements instead of more trials.
“Described as the most complex litigation ever, the trial will begin to sort out the welter of accusations over the crisis,” my colleague Lenny Bernstein reports from Cleveland. “While six drug companies are defendants in the case, jurors also may hear blame cast widely on doctors, government agencies and perhaps even drug users themselves. The jury’s response will help decide who should bear the cost of one of this century’s worst public health crises.”
If lawyers for Cuyahoga and Summit counties can keep the focus broad — on how the distributors helped create a large market supporting the illicit use of opioid prescription painkillers — they could gain the upper hand.
But the drug distributors want to do the opposite and get really, really specific. If the distributors can drill down into questions such as which doctors overprescribed medications for which patients, they could find their defense easier.
“The nightmare scenario for the counties is this devolves into a debate about whether particular prescriptions were warranted or not,” David Noll, a Rutgers University School of Law professor and expert in legal institutions and procedures, told me.
“If that happens, the plaintiffs automatically lose, because the drug companies point the finger at the doctors,” he said. “They are trying to avoid having ten thousand mini-trials on particular prescriptions.”
On trial are the country’s three biggest drug wholesalers — McKesson, Cardinal Health and AmerisourceBergen – controlling 85 to 90 percent of drug distribution in the United States. So is drugmaker Teva, the Walgreens retail chain and Henry Schein Medical, a smaller distributor.
For any company to be held liable, the counties would need a unanimous verdict from the jury. And it’s hard to predict where the 12 members will land, Lenny notes.
On one hand, more than 4 in 10 people know someone who has been addicted to prescription painkillers, according to polling by the Kaiser Family Foundation. On the other, those same polls show 69 percent of people blame doctors for the epidemic, 68 percent blame people who use the drugs and 60 percent blame drug companies.
Watch for the phrase “public nuisance” to come up frequently in the court case. It’s a legal doctrine the plaintiffs are using to build their case, arguing that states can bring lawsuits against entities that present a menace or “nuisance” to the public's health. They’re hoping this argument will help to build a broad case without having to get into the nitty-gritty details of how drugs got into the hands of affected individuals.
Noll told me he thinks it will be a “bloodbath” for the drug distributors (while caveating that of course no one can actually predict how all this will go).
“I think that once the numbers on how many opioids they were moving come out and once all of the red flags that were not paid attention to are presented to the jury, it’s a very tough case to try,” Noll said.
Many drugmakers have already settled.
Johnson & Johnson announced earlier this month it reached a $20.4 million settlement with Cuyahoga and Summit counties. Mallinckrodt Pharmaceuticals has said it will pay the counties $24 million in cash and donate $6 million in medications. Perdue Pharma, maker of the widely used drug OxyContin, is negotiating a $10 billion to $12 billion settlement with a slew of plaintiffs which the company hopes could end all lawsuits against it.
There was a concerted effort late last week to avert today’s trial. But after a full day of face-to-face negotiations on Friday, state attorneys general, corporate executives and lawyers for the cities and counties failed to agree on a proposed $50 billion plan to settle the lawsuits.
“Polster, who has encouraged a negotiated settlement for nearly two years, warned the parties this could be their last hope for a quick resolution,” Lenny reports, along with The Post’s Sari Horwitz, Scott Higham and Aaron C. Davis. “If they failed to reach a settlement, he said, a jury would be seated for opening arguments Monday in the biggest civil action in American history.”
“Polster also said that nobody could anticipate how those jurors would decide, or how many years of appeals might follow, imperiling companies and communities affected by addiction,” they write.
The failure wasn’t for lack of trying. During the Friday talks — which started about 9:30 a.m. and broke up shortly after 7:30 p.m. — Polster shuttled between groups camped in rooms in two floors of the federal courthouse in Cleveland, per my colleagues. But to no avail.
“We’ve … got a jury in the box. This case is going to trial,” said Joseph Rice, one of the lead attorneys for the cities and counties.
AHH, OOF and OUCH
AHH: Sen. Elizabeth Warren (D-Mass.) announced during an Iowa rally that she intends to release a plan outlining how she will pay for her Medicare-for-all proposal. The announcement comes after the leading presidential contended fielded attacks during multiple debates and from rival Democratic candidates on the issue.
Yet over the weekend, Warren continued to deflect questions about whether middle-class taxes would go up as a means of paying for her plan, our Post colleagues Annie Linskey and Dave Weigel report.
Warren did not get a Medicare-for-all question in Indianola, but she's closing her remarks by defending it.— Dave Weigel (@daveweigel) October 20, 2019
"I plan over the next few weeks, to put out a plan that talks, specifically, about the costs of Medicare for all - and how we pay for it."
Warren says she's been working on these cost layouts for a while, and is just finishing them up.— Dave Weigel (@daveweigel) October 20, 2019
"Right now, the cost estimates on Medicare for All vary by trillions and trillions of dollars. And the different revenue streams for how to fund it — there are a lot of them," she said during an event in Indianola, Iowa, the Des Moines Register’s Kim Norvell reports. "So this is something I’ve been working on for months and months and it’s got just a little more work until it's finished."
“Warren, using a double negative, repeated a pledge that she won’t sign a bill into law that ‘does not reduce the cost of health care for middle class families,’” Annie and Dave write. “When asked by a reporter after her town hall if her plan would include taxes on the middle class, Warren declined to answer saying: ‘The whole plan will be out — you’ll be able to look at it.’”
— Some Senate Democrats have been calling on Warren to be clearer about how she would fund her health-care proposal.
“There are pluses and minuses to Medicare for All. You have to be direct about the fact that there are certain consequences of it that will affect people differently. The more you can be transparent about it, I think it’s important,” Sen. Ben Cardin (D-Md.) told the Hill’s Alexander Bolton.
Another Democratic senator, Sen. Jacky Rosen (D-Nev.), was asked if she agreed that Warren should be more explicit. “I think everyone who’s running for president should talk about their plan, how they plan to implement it and how to plan to pay for it,” she told Alexander.
OOF: As the bellwether trial begins in Ohio, a Post team reports on how West Virginia proved to be a case study in how legal battles against drug companies don't always balance the scales.
The state, which has the highest opioid death rate in the country, was the first to take Purdue Pharma to court in 2001, and officials later filed three more high-profile lawsuits against opioid distributors.
But officials settled the four cases for a total of $94 million, compared to Oklahoma, which settled two opioid-related cases for a total of $355 million and may be getting another $572 million from Johnson & Johnson, write our colleague Debbie Cenziper along with West Virginia University professor Emily Corio and student Douglas Soule and George Washington University student Kelly Hooper.
As state officials there fought over allocating the settlement money, a child welfare crisis grew. There are nearly 6,900 children in state care, and more than 80 percent in the foster system have been impacted by a drug epidemic that separated them from their families. The number in state care is double from a decade ago.
"Over the course of the state’s lawsuits, politicians accused their rivals of playing into the hands of drug companies," our colleagues write. "Newspapers raised questions about conflicts of interest. Lawmakers criticized the state’s former attorney general for spending settlement money on pet projects. Auditors found money was mismanaged. State officials fought over how to allocate it....West Virginia spent $24 million of the settlements on legal fees to private lawyers and more than $20 million on drug treatment facilities."
OUCH: Former Veterans Affairs Secretary David Shulkin details what he calls a “toxic” Washington in his book out this week.
“The VA was once thought to be the only part of the federal government that was above politics,” Shulkin writes in “It Shouldn’t Be This Hard to Serve Your Country.” But, he adds, “the environment in Washington had grown so toxic, chaotic and subversive that it became impossible for me to accomplish the important work that our veterans need and deserve.”
Shulkin explains he wanted to tell his “side of the story,” our Post colleague Lisa Rein reports. His ouster was extensively reported on last year, but Lisa writes “his book portrays his sense of betrayal by his staff, a group he had no hand in hiring, and by a White House he says refused to come to his defense.”
“Shulkin describes early successes in improving access to primary and mental health care, making wait times public, and expanding care to remote areas through technology known as telehealth. Ambitious projects to revolutionize electronic health records and improve Choice, the Obama-era law expanding private-sector care, were in the pipeline,” Lisa writes. “…But signs of trouble percolated quickly. Political appointees who worked for him held secret meetings without him, often at the White House. Shulkin began to suspect his security detail of disloyalty, circulating his schedule outside the agency and snapping photos of him doing errands, exposing him to security risks.”
HEALTH ON THE HILL
— Nearly three weeks after his heart attack, Sen. Bernie Sanders (I-Vt.) stood before a crowd of more than 25,000 in New York, accepting an endorsement from Rep. Alexandria Ocasio-Cortez (D-N.Y) and seeking to assuage any concerns about his health, our Post colleagues Sean Sullivan and Chelsea Janes report.
“I am more than ready to assume the office of president of the United States,” Sanders said. “I am more ready than ever to help create a government based on the principles of justice.”
“To put it bluntly,” he added, “I am back.”
“It served to signal that his candidacy, which even some close confidants were unsure would continue in the first days after his health scare, had regained its footing,” Sean and Chelsea write. Despite strong fundraising and high-profile endorsements in recent weeks, “his future in the race has been obscured by lingering questions about his age, health and ability to expand his support beyond a limited, if loyal, base all at a moment when former vice president Joe Biden and Sen. Elizabeth Warren (D-Mass.) are ahead of him in most polls.”
Our colleagues write the Vermont senator has at times declined to take advice from his confidants, advisers and friends – however, he seemed to take suggestions to speak more openly and personally during Saturday’s comeback rally, “framing his health situation as a way to talk about what he says are severe economic, social and health-care issues facing people every day.”
— A Department of Health and Human Services official told a federal judge the government separated 1,250 children from their families at the U.S. border with Mexico before it formally announced the administration’s “zero tolerance” immigration policy.
That means a “final accounting” of the government’s actions, expected this week in legal filings, will likely show an additional 1,250 separations above what was previously reported, Courthouse News’s Bianca Bruno reports.
“The additional separations will likely be confirmed before an Oct. 25 deadline set by [U.S. District Judge Dana Sabraw] in the expanded family separation class action he’s presiding over in the Southern District of California,” Bianca writes. “The government had 6 months to account for all additional families it separated after a report by the Office of Inspector General this past January raised the alarm that thousands more children may have been separated than previously thought.”
— And here are a few more good reads:
- The House Veterans' Affairs Subcommittee on Economic Opportunity holds a hearing on benefits for all servicemembers on Wednesday.
- The House Energy and Commerce Subcommittee on Oversight and Investigations holds a hearing on “The Trump Administration’s Attack on Health Care” on Wednesday.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) embraces Bernie Sanders at rally in Queens: