The pile-on is well underway.
On Aug. 1, 10 counties and one city in the southern half of Missouri filed a joint lawsuit in the 22nd Circuit against 49 defendants they consider to be major players in the prescription-opioid industry.
They’re not the first: according to court records, at least 11 other cities and counties in Missouri have already filed against many of the same defendants at the federal level in the past year. Nearly all of those cases are awaiting official transfer to the multi-district litigation in the Northern District of Ohio, which was set up in December and, according to an attorney involved, has become the venue for nearly 1,100 actions from around the country.
The Aug. 1 plaintiffs in Missouri aren’t even the most recent in the state: a week after they filed, the City of Kansas City filed its own federal action. But these plaintiffs do appear to be the only political subdivisions here to be seeking relief in state court.
Jack Garvey, a former St. Louis circuit judge who now is at Carey, Danis & Lowe and on the team representing the plaintiffs, acknowledged that transfer to Ohio was possible. But he pointed out that Mallinckrodt, one of the manufacturer defendants, makes opioids at a complex right in the Near North Riverfront neighborhood of St. Louis.
“We think the damage has been done in Missouri,” Garvey said. “These counties are getting crushed with this. To have the matters settled in state court is proper.”
Opioids are opium-like painkillers. Some forms, such as heroin, are illegal. Others may be obtained through a prescription, such as oxycodone (which is branded as OxyContin, Percodan and Darvocet) and hydrocodone (which is branded as Vicodin). The plaintiffs are targeting the networks that produce, sell and distribute the prescription forms.
The suit filed on Aug. 1 in the City of St. Louis is a little outside the norm because of its “comprehensive” nature, Garvey said. The plaintiffs, which include Jefferson, Cape Girardeau, Christian, Crawford, Greene, Iron, Jasper, Stone, Taney and Washington counties, plus the City of Joplin, have named not only manufacturers, distributors, chain pharmacies and an alleged “pill mill” doctor but also prescription-benefit managers.
The two main theories of liability in this case mirror those used in other cases nationwide. The first theory is that manufacturers and distributors “misbranded” the drugs and misled communities, doctors and residents. Specifically, the defendants allegedly assured people that opioids were appropriate for chronic pain, were not addictive, did not entail withdrawal symptoms and could be consumed in higher dosages without increasing the probability of addiction, when in fact none of this is true. To spread these ideas, the defendants allegedly used “key opinion leaders,” “bogus front groups” and “corrupted scientific literature and studies,” according to the suit.
The plaintiffs’ second theory of liability is that defendants violated state and federal laws by not reporting suspicious orders to the Missouri State Pharmaceutical Board and the federal Drug Enforcement Agency.
“During the last 15 years,” the plaintiffs claimed, “opioids have literally flooded these counties and city, enslaving an unsuspecting public in the horror of opioid addiction, and none of the Defendants ever reported suspicious orders to any of these communities. The result is what we have today: thousands dead, addicted, and Plaintiffs’ communities straining in managing this problem.”
The petition contains counts of public nuisance, negligence per se — illegal diversion, negligence, fraud in the omission, fraud and negligent misrepresentation. In this respect, it differs from the opioid suit filed in June 2017 by Missouri Attorney General Josh Hawley, which was based almost entirely on alleged violations of the Missouri Merchandising Practices Act.
The manufacturer defendants include Purdue Pharma, Cephalon, Janssen, Depomed, Endo, Allergan, Mallinckrodt, Mylan and Insys. Of these, only two responded by press time to requests for comment. A spokesperson for Janssen said the company’s “marketing and promotion of these medicines were appropriate and responsible.” A spokesperson for Endo said the company denies the allegations and intends to vigorously defend itself.
The distributor defendants include Cardinal Health, McKesson and Amerisourcebergen. Only the latter responded by saying that as a distributor, Amerisourcebergen tries to not interfere with clinical decisions made by doctors, but it does halt and report suspicious orders.
John Parker, the senior vice president of the trade group Healthcare Distribution Alliance, wrote in a statement: “The idea that distributors are responsible for the number of opioid prescriptions written defies common sense and lacks understanding of how the pharmaceutical supply chain actually works and is regulated. Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation.”
The chain-pharmacy and prescription-benefit-manager defendants include Express Scripts, Walgreens, CVS, Caremark, Optumrx, and United Healthcare of the Midwest. Walgreens responded to the Aug. 1 lawsuit saying that it does not comment on pending litigation. A spokesperson for Express Scripts said, “We intend to vigorously defend ourselves against these allegations.”
Sarah Burns, a shareholder at the Alton, Illinois firm Simmons Hanly Conroy, is representing St. Louis County in its federal suit. She said it’s not clear whether suits in state courts will stay put or get absorbed into the multi-district litigation in Ohio, as St. Louis County’s suit did.
“Missouri is going to be an interesting battleground,” she said. “There’s a risk of filing at the state level because of the potential of removal and the early delay it could cause. But there’s a benefit to filing at state level because your client’s case is being litigated and decided at home.”
Garvey said in his meetings with clients in southern Missouri, he was struck by the burden the opioid epidemic had imposed on local governments.
“The biggest strain I’m seeing is on law enforcement and juvenile services,” he said. “And I heard these personal accounts of people’s lives being ruined, and it all started with prescriptions. Just really tragic stories.”
The case is Jefferson County et al v. Purdue Pharma, 1822-CC10883. The multi-district litigation is National Prescription Opiate Litigation, 1:17-MD-2804.