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The Opioid Crisis: Getting Big Pharma to Pay

TAKING BIG PHARMA TO COURT

On January 3, 2019, Georgia Attorney General Chris Carr filed a lawsuit in Superior Court of Gwinnett County against opioid manufacturers and distributors for their false and deceptive marketing campaign that grossly understated addiction risks and overstated the benefits of opioids. The civil action was brought under Georgia law against some of the biggest names in Big Pharma: Purdue Pharma, Teva Pharmaceutical Industries, Endo Health Solution, Inc., to name a few.

The cost of treating a nation of addicts is staggering. The cost of not facilitating rehabilitation from opioid addiction and the long-term consequences of neonatal abstinence syndrome and neonatal opioid withdrawal (NAS and NOW) and other transgenerational problems caused by substance use disorder is even higher. So how do we finance these necessary investments?

FOLLOWING BIG TOBACCO’S LEAD

Many look to Big Pharma to share some of the enormous wealth it has reaped from selling the drugs at the heart of the Opioid Epidemic. Specifically, lawsuits against Big Pharma companies and some distributors have been filed in record numbers in recent years; even a lawsuit against individual family members of a pharmaceutical company was filed. The lawsuits are modeled after the Big Tobacco Litigation of the 1990s—and in fact, Michael Moore who led that litigation is leading one of the biggest opioid lawsuits—and are being filed by cities, counties and states (rather than individual victims or class actions). As of October 18, 2018, according to an article on forbes.com, the opioid lawsuits against Big Pharma are on track to lead to a settlement that will top the settlement reached in the Big Tobacco Litigation. As of June 2018, 23 states and Puerto Rico have sued Purdue Pharma, the maker of OxyContin. In June 2018, the Massachusetts Attorney General sued individual members of the Sackler family, the founders of Purdue Pharma, for making misleading claims about the drug, directing sales representatives to blame users for misuse, and for encouraging doctors to over-prescribe it. In October 2018, Suffolk County, N.Y. also filed a lawsuit that named individual members of the Sackler family.

In a deal that is the first of its kind and may serve as a model for the more than 1,600 lawsuits involving the maker of OxyContin, Purdue Pharma LP and its owners, the Sackler family, announced this week a deal to pay $270 million to settle a lawsuit filed by Oklahoma’s attorney general Mike Hunter. The majority of the money will fund a national opioid addiction center, which will be supported by an advisory board of experts in academia, medicine, law enforcement and treatment. The addiction and treatment center will be located at Oklahoma State University.

MISUE AND ILLEGAL SUBSTANCES CLOUD LIABILITY ISSUES

Although the lawsuits against Big Pharma have adopted the successful strategy of the Big Tobacco Litigation, there are some important distinctions between the two. The biggest difference is that opioid addicts are misusing the substance causing the harm, so defendants argue that if their product were used properly, the harm—overdose—would not occur. The second big difference is that very often addicts misuse multiple substances, sometimes including illegal substances (e.g. heroin). Big Pharma argues that poly-substance use together with use of illegal substances negates any liability on their part, since their drugs are FDA approved and not lethal if used as prescribed.

The above differences make litigation against Big Pharma more difficult than the Big Tobacco Litigation, where there were no issues of misuse or multiple substances. The issue of misleading the public about the propensity for the product to cause addiction, however, is the same in both Big Tobacco and Big Pharma; in both cases the manufacturers claimed that their products were not addictive (and not harmful).

FENTANYL: THE GAME-CHANGER

Fentanyl is a synthetic opioid which is extremely powerful and was mainly used in operating rooms as an anesthetic until the introduction of duragesic patches marketed by Johnson & Johnson and lozenges marketed under the brandname Actiq by Teva. Overdose deaths from fentanyl have been rising since 2010, but began skyrocketing after 2011, according to a recent report by the Centers of Disease Control and Prevention: a 1000% increase in fatalities was recorded between 2011-2016. The youngest were hardest hit, with a 94% yearly increase in deaths for 15-24 year olds. In addition, African Americans and Hispanics had the highest rates of increase in fentanyl overdose deaths: between 2011-2016, blacks had fentanyl death rates increase 140.6% annually and Hispanics had an increase of 118.3% annually.

The lethality and prevalence of fentanyl cannot be overstated. In 2016, fentanyl was responsible for nearly 29% of all drug overdose deaths, making it the deadliest drug in America. In 2017, drug overdoses killed more than 70,000 Americans, and opioids are the leading cause of overdose deaths. Americans are now more likely to die from a drug overdose than a car accident. On January 26, 2019, the U.S. Customs and Border Protection officials made their biggest fentanyl seizure ever, interdicting app. 254 pounds of the synthetic opioid at the Nogales, AZ border crossing. The drugs were found hidden on the underside of a truck attempting to cross at a Port of Entry. That amount of fentanyl is equal to enough doses to kill an estimated 57 million people—the populations of NY, PA and Illinois. In addition to the fentanyl, 395 pounds of methamphetamine was also seized.

Because an extremely small amount of fentanyl is lethal, and because it is so easily manufactured and procured, some experts believe that it and its analogs such as carfentanil have created a distinct opioid epidemic. Whether distinct or a new, deadlier wave of the continuing epidemic, fentanyl and other synthetics represent a turning point in America’s deadliest health crisis in history.

CONTACT YOUR ATTORNEY

If you or someone you know is suffering from substance use disorder, contact Dave Thomas at the Thomas Law Firm for a free evaluation of your legal rights. You can also call Georgia’s 24/7 helpline at (678) 331-7430 or contact the Georgia Department of Behavioral Health and Developmental Disabilities; for more information visit http://www.hodac.org.

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