SEATTLE (CN) — Washington state is alleging public nuisance and consumer protection claims against three major opioid distributors and seeking more than $38 billion in damages in a trial that began Monday morning following critical blows to similar cases in other states this month.
The Oklahoma Supreme Court reversed a bellwether $465 million verdict against opioid manufacturer Johnson & Johnson last Tuesday, finding a lower court judge misinterpreted the state’s public nuisance law during a bench trial in 2019.
A week prior, a superior court judge in Orange County issued a tentative ruling that several California counties failed to prove the promotion of opioids by drugmakers — regardless of whether their statements were misleading — led to an increase in medically inappropriate prescriptions that created a public nuisance. The counties were seeking $50 billion in damages Johnson & Johnson, Teva Pharmaceutical Industries, Endo International and Allergan through the bench trial.
Washington Attorney General Bob Ferguson acknowledged the risk in taking the state’s claims to trial but told the Associated Press that comparing his case to those in California and Oklahoma is “apples and oranges” due to differences in state law.
The bench trial in Washington will last about three months, with breaks around the holidays, according to projections from attorneys. King County Superior Court Judge Michael Scott is overseeing the case against McKesson, Cardinal Health and AmerisourceBergen.
Ferguson, who sued the distributors in 2019, led opening arguments for the state, calling this his most significant public health lawsuit during his tenure — and perhaps in the history of the state attorney general’s office.
Ferguson filed a separate lawsuit against Johnson & Johnson in King County Superior Court in 2020. His office also sued Purdue Pharma in 2017 and has appealed the drug manufacturer’s bankruptcy plan to settle claims from 48 states.
Since 2006, more than 10,800 Washingtonians have died from opioid overdoses, according to data presented by the state. A study from the U.S. Senate Health, Education, Labor and Pensions Committee showed opioid overdose deaths cost the state more than $34 billion between 2012 and 2016 alone.
Ferguson in July rejected a share of the $26 billion proposed settlement from McKesson, Cardinal Health and Amerisource Bergen and Johnson & Johnson to settle legal claims nationwide. The settlement would have sent Washington $527.5 million over 18 years, but Ferguson said this was insufficient to address Washington’s opioid crisis.
Former Chief Economist for the U.S. Office of Management and Budget Dr. Jeffrey Liebman put the cost of opioid abatement in Washington at $38 billion over 15 years, which is the amount the state is seeking in damages from distributors, according to attorneys for the state. The lion’s share — $33.5 billion — would be earmarked for treatment under the state’s abatement plan, while $3 billion would go to harm reduction, $989 million to prevention and $413 million to systems coordination.
Expert estimates show this abatement plan could cut the number of people with opioid addiction in half over the next 15 years, said Linda Singer, an attorney representing the state. The programs would largely be an extension of what has already been shown to be effective in practice in Washington.
“It is a moonshot, but it is not rocket science,” Singer said.
The state placed blame on the opioid distributors for shipping 3.8 billion pills — an amount attorney Don Migliori compared to the peak of Mt. Rainier — into the state between 1996 and 2018 without having proper controls in place for flagging and halting suspiciously large or frequent orders.
Internal documents, attorneys argued, showed that the drug distributors were aware of the harms associated with opioids yet persisted with their practices. All three companies received administrative penalties between 2007 and 2008 related to anti-diversion programs, acknowledging systemic failures and not just issues at specific distribution centers.
One Rite Aid in a city in Grays Harbor County with a population of fewer than 9,000 purchased 2.8 million doses between 2006 and 2014, according to the state. Another city in Skagit County was the state’s largest purchaser of hydrocodone, also with a community of fewer than 9,000 people, and the Drug Enforcement Administration issued repeated warnings about the outsized shipments.
Migliori said studies show the biggest risk factor for developing opioid addiction is exposure and availability to the drugs, rather than prior substance abuse or mental health issues.
“The more pills, the more opioid use disorder or addiction there is throughout the community. Excessive shipments and distribution of prescription opioids results in epidemic levels of prescription opioid use disorder,” said Migliori, outlining the state’s logic. “And it’s the epidemic level of opioid use disorder that results in persistent harm throughout the community.”
Attorneys representing the opioid distributors sought to break this chain of causation.
If they looked upstream to DEA regulators, they were in compliance with federal law, said Cardinal Health attorney Enu Maingi. And if they looked downstream doctors were prescribing more and more opioids due to an increased emphasis on pain management among medical professionals.
“No one in the state of Washington got a prescription for opioid pain medicine without a doctor,” said Bob Nicholas, an attorney for AmerisourceBergen.
Nicholas and other attorneys for the drug distributors said it wasn’t their clients’ place to scrutinize the decisions of medical professionals, who the DEA said almost always prescribed opioids legitimately. Rather, they were simply fulfilling bulk orders to pharmacies and never had insight into individual prescriptions.
Meanwhile, their control systems for flagging suspicious orders remained in compliance with DEA guidance and evolved as the agency required, according to the attorenys.
State attorneys also sought to draw a line between the decline in opioid prescriptions around 2008 due to changing medical guidance and the subsequent increase in deaths from heroin and other illicit drugs.
“To the extent that opioid pills have slowly gone away in volume, the deaths have been taken over by a market that was created for users who’ve had this persistent need to find opioids in order to handle their withdrawal and their symptoms,” Migliori said.
Paul Schmidt, an attorney for McKesson said the state's logic was oversimplified and posits that removing prescription opioids from the market would make the worst of the drug addiction crisis go away.
“I suspect all of our life experience tells us addiction is more complicated than that and the science will show that too,” Schmidt said.
The majority of opioid diversion – about 60% – into illegitimate hands has been through medicine cabinet diversion, such as when young people get into grandparents’ pills or someone gives part of their old prescription to a friend who doesn’t want to go see a doctor for pain, according to Nicholas.
“We have no visibility to it, and it has nothing to do with us,” Nicholas said. “We can’t jump out from behind a shower curtain.”
Attorneys representing the drug distributors claimed that today’s opioid crisis lies with the illicit drug trade of heroin and fentanyl, while the epidemic as it relates to prescriptions has improved.
“In order to put together a lawsuit, they’re trying to rewrite history,” said Nicholas.
But attorneys for the state say the measures drug distributors have taken in recent years have been too little, too late.
“They displayed a callous disregard for the communities and people who bear the impact of their greed,” said Ferguson.
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