- The Washington Times - Tuesday, May 15, 2018

Six states sued a leading opioid manufacturer Tuesday, saying Purdue Pharma used deceptive tactics to downplay the risks of its painkiller OxyContin and helped fuel the addiction crisis.

Attorneys General Ken Paxton of Texas and Pam Bondi of Florida are among those taking action, adding major voices to a growing list of states, cities and Indian tribes demanding that the pharmaceutical industry foot the bill for treatment and other costs tied to the epidemic.

“In the face of abundant evidence showing that the drug was dangerous and that long-term use could lead to addiction, Purdue saw fit to exchange destroyed lives for financial gain,” Mr. Paxton said.

More than 20 other states and the territory of Puerto Rico have joined lawsuits against top opioid manufacturers over their perceived role in the crisis, which is killing tens of thousands of American per year.

The lawsuits claim manufacturers downplayed the likelihood of addiction and that distributors flooded towns with pills. As a result, the lawsuits say, legions of Americans got hooked on the drugs and turned to cheaper heroin laced with deadly fentanyl.

States say they are entitled to damages for the enormous costs for treatment and law enforcement.

Mr. Paxton put Texas’ opioid-related medical costs at $1.9 billion a year. When court costs and lost productivity are added as factors, he said, the figure reaches $28 billion.

North Carolina, Nevada, North Dakota and Tennessee also filed suit against Purdue Pharma, which denied the charges and said it looked forward to presenting its defense.

“We are disappointed that after months of good faith negotiations working toward a meaningful resolution to help these states address the opioid crisis, this group of attorneys general have unilaterally decided to pursue a costly and protracted litigation process,” said the company, which in February said it would no longer promote opioids.

Ms. Bondi’s expansive lawsuit covers an additional four opioid manufacturers and four more distributors.

Mr. Paxton said Texas is considering action against other companies, too, although he is using the court system to wage war against opioids makers.

A lawsuit filed by Oklahoma Attorney General Mike Hunter is scheduled for trial in state court next year.

In the federal courts, meanwhile, a judge is trying to consolidate a number of cases. U.S. District Judge Dan A. Polster, presiding in Ohio, is overseeing more than 600 lawsuits — mostly from cities and counties — and is pushing to reach a global solution akin to states’ 1998 settlement with tobacco companies over the dangers of cigarette use.

Judge Polster is inviting state attorneys general and tribes that have filed suit to join the multidistrict litigation. The idea is to resolve the nationwide fight cleanly.

“Are there going to be 800, 900, 1,100 trials on these cases? That seems like it might bring the whole judicial system to a halt,” said Timothy Q. Purdon, who served as a U.S. attorney in North Dakota from 2010 to 2015 and is now representing 11 Indian tribes in the consolidated case as a partner at the Robins Kaplan law firm.

Judge Polster has scheduled three of the cases for trial in March — one from Cleveland and two from northeastern counties Cuyahoga and Summit.

The trials are supposed to serve as test cases to give litigants a sense of the kinds of damages in play.

Though almost a year away, it is still considered an aggressive timetable for going to trial, heaping pressure on litigants to think about potential solutions. Yet it’s unclear whether companies, including Purdue and McKesson Corp. — a leading distributor — will settle before the plaintiffs’ claims are stress-tested in court.

Adam Zimmerman, a professor at Loyola Law School in Los Angeles who is tracking the cases, said manufacturers have cited a number of defenses, including compliance with federal regulations and providing full information to doctors about risks, and claim they aren’t responsible for government costs.

He said some of the states’ claims are testing new legal ground, such as the assertion that companies had an obligation to warn consumers about where drugs were being sold.

Opioid overdoses killed 42,000 Americans in 2016, and officials say the death toll likely rose in 2017, meaning the crisis is killing more people than HIV/AIDS did at its height in the mid-1990s.

Leading distributors recently told Congress that they should have acted faster in cutting off West Virginia pharmacies that received millions of pain pills from 2007 to 2012. Lawmakers have filed bills that would make it easier to flag suspicious opioid shipments.

But companies say they shouldn’t be held liable for the crisis. They say plaintiffs’ calls for money to backfill hospital or fire department costs are too attenuated from the industry’s role in providing prescribed medicines to individual patients for pain relief. They also note that the overdose problem is driven in large part by heroin and fentanyl in the illicit market.

They reject comparisons to the settlement with cigarette makers, noting that doctors order opioids for chronic pain and not as lifestyle products.

Others say the comparison to Big Tobacco is apt.

“There is evidence indicating that pharmaceutical companies have known for some time about the addictive nature of opioid medications and failed to properly educate physicians regarding this,” said Lauren A. Rousseau, a professor at Western Michigan University’s Cooley Law School. “I don’t think these companies are going to be able to sidestep liability by pointing to the doctors.”

The Department of Justice has said it wants to participate in any settlement talks before Judge Polster and wants to advise the court on the national consequences of a settlement and any legal obligation of settling parties to reimburse the federal Treasury.

Alabama is the only state litigating its case through the consolidated proceedings in Ohio. However, every state in the country is participating voluntarily through their attorneys general in settlement talks supervised by Judge Polster. Many states have launched investigations short of filing suit.

Mr. Hunter, in Oklahoma, said he has no plans to settle or join the pack in Ohio. He is pushing to let TV cameras into the courtroom at the May 2019 trial so the public can watch it unfold.

“We think the people in Oklahoma need to hear and see the issues in the case,” said his spokeswoman, Terri Watkins. “We’re lone wolves down here.”

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