SAN FRANCISCO (CN) — In a case that will determine if cities across the nation can sue drugmakers, distributors and pharmacies on civil conspiracy claims related to the opioid crisis, a lawyer told a federal judge Thursday that drug users, not licensed sellers, are the ones to blame for San Francisco’s opioid problems.
"The persons most directly responsible for the city’s harms are the users who illicitly injected heroin and then disposed their needles in a way that caused the city’s expense,” McKesson Corporation attorney Christian Pistilli of Covington & Burling argued in a virtual court hearing Thursday.
San Francisco is seeking millions of dollars in damages from eight companies and their affiliates that “fraudulently” marketed opioids like OxyContin and five companies and their affiliates that distributed opioids while “failing to maintain effective controls” to flag suspicious orders and prevent drugs from leaking onto the black market.
The defendants include Perdue Pharma and its owners the Sackler family, Endo Pharmaceuticals, McKesson, Cardinal Health, Walgreens and many others.
The case was transferred to San Francisco in February from a multidistrict case in Ohio so it could serve as a bellwether case to determine if cities can sue opioid manufacturers and distributors under the Racketeer Influenced and Corrupt Organizations (RICO) Act.
During a hearing on the drug companies’ motions to dismiss Thursday, U.S. District Judge Charles Breyer questioned whether the city can hold drug companies liable for the cost of removing syringes from city property, fixing toilets and plumbing fixtures damaged by improper needle disposal and training nonemergency medical staff on how to use naloxone to reverse opioid overdoses and save lives.
Analyzing the proximate cause standard which determines if there is a strong enough link between a violation of law and harm inflicted on a plaintiff, Breyer suggested the independent acts of drug users might break the chain of causation and make it impossible to hold drug companies liable for damage to city property.
“The damage is done by the independent actions of the addicts to destroy the property,” Breyer said.
Representing the city of San Francisco, attorney Elizabeth Cabraser of Lieff Cabraser insisted a “direct flow” exists from the drug companies’ actions to harm inflicted on the city. She said the false advertising and improper controls over distribution caused the number of people using injectable drugs in San Francisco to spike from 9,000 in 2005 to 25,000 in 2016, a 275% increase.
She noted that companies like McKesson and Cardinal Health were repeatedly cited and fined by the Drug Enforcement Administration and Justice Department for failing to report suspicious orders and prevent drugs from leaking onto the black market between 2007 and 2016.
“This wasn’t just foreseeable in the negligence sense,” Cabraser said. “This was known and intended.”
But Pistilli said his client McKesson can’t be held liable for RICO under Supreme Court precedent because too many intermediate acts by third parties separate the pharma giant’s conduct from any alleged harm to the city.
“Standing between distributors and the release of opioids is the professional judgment of two professionals — doctors & pharmacists,” Pistilli said. “The opioids could harm no one if a doctor didn’t write a prescription and a pharmacist didn’t sell it.”
Other individuals who funnel drugs to the black market, sell drugs to users, and the users themselves also play roles that separate wholesale drug distributors from opioid-related problems that plague the city, he argued.
However, Breyer refused to accept the notion that the “independent actions” of drug users could break the chain of causation because the nature of drug addiction takes away “independent judgment” from those experiencing addiction.
“Why that word independent is so important is because it reflects the judgment of an individual,” Breyer said.
The drug companies also insist state-law false advertising claims against them are preempted by federal law because their promotional campaigns were consistent with drug labels approved by the U.S. Food and Drug Administration (FDA).
FDA-approved labels for opioids include a line that states, “preoccupation with achieving adequate pain relief can be appropriate behavior in a patient with poor pain control.”
Representing Janssen Pharmaceuticals, attorney Charles Lifland of O'Melveny & Myers said the federally regulated label matches what drug companies told doctors: Evaluate drug-seeking behavior on a case-by-case basis.
“Some patients may need better pain management,” Lifland said. “The doctor should address that instead of dismissing all behaviors as drug seeking.”
Cabraser said the city of San Francisco is not challenging the FDA-approved label, but instead promotional campaigns that took a line from that label out of context and used it to mislead doctors that prescribe medications.
“The defendants took that sentence and ran away with it and decided to use it as a propaganda campaign to tell every doctor that when your patient shows up seeking more drugs, ‘Don’t worry, it’s just pseudo addiction,’” Cabraser said.
After two hours of debate, Judge Breyer took the arguments under submission and said he would issue a written ruling soon.
“We will proceed as quickly as I can,” Breyer said. “Of all my cases, this has top priority, other than criminal cases.”
Drug overdose deaths surpassed 300 in San Francisco for the first time in 2019. The rise in fatalities was largely driven by an increase in the use of fentanyl, a prescription opioid. The city reported at least 162 Fentanyl-related drug overdoses in 2019, a 147% increase from the 36 reported in 2017.
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