National Reckoning for Opioid Crisis Moves Forward in Ohio Courts

National outrage against pharmaceutical companies for their role in the opioid epidemic have led some to call for criminal charges against their owners (Image)

In the midst of the fallout from the opioid crisis, the first of many reckonings for the companies and individuals involved have been dealt in courthouses this past year. The first steps of what promises to be a lengthy and complicated litigation process have included the first ruling holding a company accountable, two settlements in Oklahoma, and another two settlements in Ohio, which both serve as possible indicators of what is to come. The lawsuits have been levied against some of the biggest players in the pharmaceutical-healthcare industry, including opioid manufacturers like Johnson & Johnson and opioid distributors such as CVS and Walgreens. Big-name corporations are not the only defendants, with individuals ranging from prescribing doctors to pharmaceutical sales representatives named in court documents.

The lead-up to the opioid crisis is not particularly difficult to pinpoint. The push to battle chronic pain by the federal government and pharmaceutical companies alike led to an aggressive marketing push and subsequent over-prescription of the drugs. Pharmaceutical manufacturers began to promote and advertise the new painkillers to doctors in the mid-1990s. 

Most prosecution claims throughout this process argue that drug manufacturers were complicit in using false advertising when they marketed the painkillers as less dangerous and more beneficial than they really were. Prosecutors also allege that drug distributors irresponsibly supplied pills to pharmacies across the country and that pharmacies neglected to uphold their duty to report suspicious prescriptions to the DEA. In some cases, pharmacies were sent more opioid pills than there were people. In Williamson, West Virginia, over the course of two years, 5 million pain pills were shipped to one pharmacy in a town of only 400.

The Ohio and Oklahoma cases vary significantly in both their structure and the preliminary results. The Oklahoma ruling targeted just one company, Johnson & Johnson, and marked the first time a pharmaceutical company was held responsible for the crisis in a court ruling. The results of the ruling sent mixed signals: Johnson & Johnson was found responsible, but was only found to be liable for $572 million when the state originally sought $17.5 billion to pay for damages. Even then, Johnson & Johnson plans to appeal the decision. In addition, Purdue Pharma and Teva Pharmaceuticals settled out of court for $270 million and $80 million respectively but denied any wrongdoing. 

The two settlements in Ohio are only the first step in a much more complicated case. A judicial panel has decided to merge over 2,000 pending cases from across the country into one consolidated lawsuit called the National Prescription Opiate Litigation, to be heard in Ohio. U.S. District Judge Dan Polster will oversee all suits and can handle pretrial motions before the cases go back to their original courts if a settlement is not met. 

Another aspect of the consolidated case was the creation of a “negotiation class,” which means that the lawyers representing 49 counties and cities from 30 different states can work out settlements on behalf of every single county or city in America unless the local government chooses to opt-out. If a settlement is reached between the negotiation class and a defendant, it is put to a vote. If a majority accepts, then the settlement is allocated to the counties based on “public health factors” where the counties then have the freedom to further allocate the money within their county. Similar to a class-action lawsuit but with the addition of voting power, this first-of-its-kind negotiation class is both beneficial to plaintiffs, who can negotiate and bargain with the companies using pooled resources, and agreeable to the defendants, who only need to settle once and then are protected from any future federal lawsuits. 

However, the reception isn’t all positive. Attorneys general who wish to have their state join the negotiation class they must first suspend their own lawsuits, which means ceding control to the class representatives. All parties are concerned with the division of any settlement money. The only comparable contemporary of this trial was the 1998 Big Tabacco trial settlements, which left many counties feeling cheated out of deserved compensation by the time money trickled through the states and to the local level. States are apprehensive that after the counties and cities have been allocated their compensation there will be no funding left at the state level. Other downsides to joining include missing how these cases could play out in court if not settled, with attorneys losing the ability to test the limits of legal theories when applied to these cases. Some opioid advocates wish for more than just money and want to see an admission of guilt from the companies, and when a settlement is agreed upon, often evidence and documentation are withheld from the public as a result of the closed-door agreement, both of which can prevent families from getting closure. And, of course, there are calls for criminal suits for the individuals running the companies such as the Sackler family, rather than just civil suits. 

With the Oct. 21 date slated to have been the first day of a federal opioid trial, all eyes were on the Ohio courthouse to see how the first of potentially thousands of similar cases were to play out. However, with mere hours before the proceedings were set to begin, pharmaceutical manufacturers Teva (just as in Oklahoma) along with McKesson, Cardinal Health and AmerisourceBergen — three of America’s largest pharmaceutical distributors — settled in two Ohio counties for a combined $260 million. They joined a handful of other manufacturers, Johnson & Johnson, Mallinckrodt, Endo International and Allergan, who had previously chosen to settle out of court as part of the negotiation class. 

With the bulk of the lawsuits still to come, it is impossible to predict what the outcome will be. Researchers have placed the economic cost of the opioid crisis at anywhere from $78.5 billion to upwards of $1 trillion—numbers that will likely not be matched by settlements. And with an annual death toll of 70,000, for some, no amount of money can undo the devastation caused by the loss of loved ones. While the intense litigation plays out in courts, the first glimmer of hope has arrived. The CDC has preliminarily reported the US has seen a reduction in overdose deaths by 5.1 percent, a number that, if confirmed, would signal the first drop in overdose deaths in the U.S. in 25 years.