Policing for the Opioid Crisis: Cities and Counties Sue Pharma for Public Safety Costs

According to the Centers for Disease Control and Prevention, an average of 130 Americans die every day from an opioid overdose. Now, approximately 2,000 lawsuits from state and local governments have been filed against pharmaceutical companies such as Purdue Pharma (who introduced OxyContin in the 1990s), Teva Pharmaceuticals, Johnson & Johnson, Endo Health Solutions, Insys Therapeutics, Janssen Pharmaceuticals, Cardinal Health, Inc., the McKesson Corp. and the Amerisourcebergen Drug Corp.

Most of the lawsuits against the manufacturers are brought under a combination of anti-trust, consumer protection, and false claims acts, accusing the drug manufacturers of creating a “narrative that pain was undertreated and pain treatment should be higher priority for health care providers,” and claiming these companies failed to warn doctors of the extremely addictive nature of the narcotics and the need to strictly limit the dose.  Claims have also been brought against distributors under the federal Controlled Substances Act, alleging they failed to alert the U.S. Drug Enforcement Administration of suspicious opioids purchases, such as orders of unusual size, frequency or pattern.

In order to show harm (which plaintiffs must do in order to have standing to sue), cities and governments claim they have had to expend money for increased law enforcement, criminal justice, and jail expenses, public healthcare, and treatment facilities.  The lawsuits, therefore, seek to recover monies for those government expenses.

For example, Summit County in Ohio alleges that they had 240 overdose deaths in 2016.  Gerald Craig, executive director of the Alcohol, Drug Addiction and Mental Health Board in Summit County states that their overdoses went from three a day to over twelve a day.  The County claims that taxpayers have paid out roughly $70 million dollars to tackle the problem.  Donna Skoda, chair of the county’s health department said that they have started looking for grants and have had to expand the foster care system in Summit County largely due to the opioid crisis.

Currently, more than 1,400 federal lawsuits against pharmaceutical companies have been consolidated in front of a single judge in Cleveland, Judge Dan Polster.

Judge Polster has refused to dismiss claims against drug firms, and he’s made it clear he feels the drug industry is partly to blame for the opioid epidemic.

In June, attorneys for local governments across the country stated they have a plan that they say would move the nation closer to a global settlement of lawsuits stemming from the deadly opioid crisis. Under this plan, cities, towns, villages and counties would be swept into a single “negotiating class.” Under that legal designation, local leaders would be able to approve or disapprove any settlements reached with drug companies. The vote would be weighted by population.  If three-quarters of communities sign off on deals, it would be finalized and money would be paid out, ending the company’s liability. A separate emergency fund, roughly 15% of any settlements would be set aside for towns or cities particularly hard-hit by the opioid crisis. And 10% of all drug industry payouts would go to pay the hundreds of private trial attorneys involved in the litigation.

This plan has not been agreed to or approved by the court, but if it was, final payouts could rival the massive tobacco settlements of the 1990s.

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