The Opioid Files: More Than 100 States and Cities Are Suing Drug Companies

Lawsuits are being filed practically every week. Will governments prevail over the pharmaceutical industry like they did the tobacco industry in the 1990s?
by | November 13, 2017
A gavel hitting pills.
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A few years ago, Mississippi Attorney General Jim Hood was worried about a friend’s son who served two tours in Iraq. After being injured overseas, he became dependent on prescription painkillers and eventually developed a heroin addiction. 

But then, his friend's son got into law school and showed signs of sobriety, so Hood offered him an internship in his office. A few days into the internship, he didn’t show up.

“We called his wife, and she went home to check up on him," Hood says. "He was dead of an overdose."

Shortly after that, in 2015, Hood became the first state attorney general to sue a prescription drugmaker for their role in the opioid epidemic. Since then, more than 100 states, cities and counties have filed similar lawsuits, with a new one popping up almost every week.

Drug dependency isn't a new problem, but unlike most drug epidemics, the opioid one is largely driven by a legal industry. The National Institute on Drug Abuse estimates that 75 percent of people who enter treatment for a heroin addiction took their first opioid legally from a prescription. 

States have tried to crack down on the problem, primarily with prescription drug monitoring databases that track what patients have been prescribed by doctors within and across states. But if addicts can't get prescription painkillers, they typically resort to illegal drugs, including heroin, fentanyl and carfentanil. The latter two are at least 50 times stronger than heroin and can kill users within seconds.

The Centers for Disease Control and Prevention estimates that each day, 91 Americans die from overdosing on opioids. And it's not just a human tragedy -- the opioid epidemic has a financial cost, too.

“It’s devastated county and municipal budgets. There’s been a significant cost for law enforcement, first responders, for drug treatment, for lost productivity of government workers and for services like autopsies,” says Mark Chalos, a Nashville-based partner at Lieff Cabraser Heimann & Bernstein, LLP a law firm counseling some of the counties in Tennessee exploring lawsuits.

Some places in Tennessee, he says, can no longer afford to do autopsies for every suspected drug overdose, so it’s likely that the official count of deaths from the opioid epidemic “is just the floor."

In addition to the 100-plus lawsuits, 41 states have banded together to subpoena information from four drug manufacturers: Endo, Johnson & Johnson's Janssen unit, Teva Pharmaceutical and Allergan. They’ve also put in a request for more information to Purdue Pharma and drug distributors AmerisourceBergen, Cardinal Health and McKesson.

“If we get into those emails and executives are in the chain knowing what they’ve unleashed on the American public, I’m going to kick it over to a criminal lawsuit," says Hood. "I’ve been to too many funerals."

For now, all of the cases are civil. Most localities are seeking monetary damages to help them recoup the money lost to fighting the epidemic. Many of the lawsuits also hope to force drugmakers to change their marketing tactics, which they argue are deceptive, to make it more clear just how addictive the pills can be.

 
Opioid Lawsuits Filed by States and Localities

map of opioid lawsuits filed by state and local governments

Click the map to see an interactive version. (SOURCE: News reports, state court records and information provided to Governing by attorneys.)

 

Tobacco Déjà Vu?

These cases have drawn comparisons to the lawsuits in the late 1990s against tobacco companies. As it happens, Mississippi led the way on that too. After Mike Moore, the state's then-attorney general, took tobacco to court, 40 states followed.

"The lawsuit is premised on a simple notion," Moore said at the time. "You caused the health crisis; you pay for it."

It worked: The tobacco industry was court-ordered to pay more than $200 billion to states over 25 years. That cash is still rolling in and will be until 2025. Those lawsuits also resulted in significant policy changes, including a ban on most forms of outdoor advertising, including billboards and transit ads. Tobacco companies are also now banned from marketing to teenagers and were required to fund an anti-smoking advocacy group, which airs the Truth ad campaigns.

It's too soon to say exactly how similarly the opioid cases will play out. But Chalos, the lawyer, says he's "optimistic that the industry will be held accountable in the end." He warns, however, that drugmakers have big resources and are expected to fight tooth and nail.

For their part, the drugmakers say they have taken steps to curb addiction and help states fight overdoses. In a statement to NBC News, Purdue Pharma said: "We are an industry leader in the development of abuse-deterrent technology, advocating for the use of prescription drug monitoring programs and supporting access to Naloxone -- all important components for combating the opioid crisis."

But most of the governments argue in their cases that drug companies violated consumer protection statutes by deceiving the medical community about the likelihood of addiction and inadvertently putting patients in danger. Many lawsuits are also claiming that drug companies committed Medicaid fraud by forcing taxpayers to pay for unnecessary prescriptions.

If a judge rules that drug companies violated consumer protection statutes, Hood says states could receive up to $10,000 per occurrence, which a judge could interpret as each prescription or each doctors visit. Either way, that would result in trillions of dollars for the state and local governments, he says. The court could also order the companies to reimburse states for drug treatment and unnecessary prescriptions paid for by Medicaid programs, he says.

“For every dollar that these companies have profited from, I want there to be a dollar that gets set aside for drug treatment,” says Hector Balderas, attorney general of New Mexico, who filed a lawsuit in September.

One significant difference between the opioid cases and the tobacco cases is that counties and cities are filing suit this time -- not just the states.

“[The tobacco] litigation was successful, but states kept all that money. None of it flowed down to the counties,” says Paul Hanly, a partner with Simmons Hanly Conroy, which is representing more than a dozen counties in opioid lawsuits and has already settled similar cases on behalf of patients.

Because he’s been here before, Hanly warns it may take longer than many might like.

“Litigation like this typically lasts three to seven years. I’d be very surprised if we were resolved by this time next year,” he says.

 

What to Expect in 2018

In the meantime, while state and local governments fight these battles in court, drug overdose deaths are still climbing. A STAT investigation found that opioids could kill as many as 500,000 Americans in the next decade. 

Jan Rader, fire chief in Huntington, W.Va., one of the cities that filed suit, says that surrounding Cabell County is expected to hit 2,000 overdose deaths this year.

“This is going to be our new normal for a while,” she says.

President Donald Trump declared the opioid epidemic a public health emergency last month, but neither he nor Congress have made extra money available for states and localities to deal with it.

Hood wishes Trump “would put his money where his mouth is” and pledge more money to combat the crisis. But he’s hopeful that drugmakers will eventually have to pay billions of dollars in damages for their role in the epidemic. He even predicts that some pharmaceutical companies will go bankrupt in the process.

“This needs to be a deterrent for the next 50 years," he says. "We have to gorge them of their profits. They need to be made an example of."