The West Virginia Bellwether Trial: Proving Liability in the Opioid Crisis
The first bellwether trial in the sprawling multidistrict opioid litigation began on May 3 in West Virginia federal court. The plaintiffs in the trial, Cabell County and the city of Huntington, West Virginia, which many consider the epicenter of the opioid drug crisis, are squaring off against the remaining defendants, drug distributors Amerisource Bergen, Cardinal Health Inc. and McKesson Corp. In an effort to avert the trial, the defendants had proposed a $21 billion global settlement but Joe Rice, a lead attorney for the MDL plaintiffs, has advised that there were no active negotiations as of the start of the bench trial presided over by U.S. District Judge David A. Faber in Charleston, W.V.
The suit was originally filed by the plaintiff municipalities in 2017 and was later chosen by the then-presiding judge to serve as one of several bellwether trials to be held. At issue are the plaintiffs’ allegations that the deceptive business practices in which the defendants engaged over decades spawned the opioid crisis that has led to the death of 500,000 Americans; they point to what they argue is the inevitable progression from the excessive over-prescription of narcotic painkillers to the use of heroin and illicit fentanyl. At the center of this argument are the drug distributors who the plaintiffs allege exacerbated the problem by recklessly ignoring any checks put in place such as those imposed by the Controlled Substances Act. The plaintiffs will argue that flooding the area with 80 million doses of opioids over an eight year period constituted a public nuisance that is harmful to the public interest; as redress, the municipalities are seeking $2.6 billion to address the issue. To succeed, the county and city will need to prove that the distributors were aware that the prescriptions were excessive but did nothing to control the problem.
In their opening statements, Cabell County and the city of Huntington argued that although the litigation itself was complex, its cause was not, stating that the simple explanation was that the actions of the distributors in selling “a mountain of pills” led directly to the deaths of citizens in the city and county. Amerisource Bergen, Cardinal Health Inc. and McKesson Corp. responded by shifting blame onto lawbreakers and regulators who failed to control the epidemic; they described the crisis as having been caused by street gangs, pharmacists who acted illegally and negligent government officials. AmerisourceBergen in particular argued that any attempts by the company to report questionable orders were mishandled by the DEA and were not addressed. Cardinal Health argued that it was merely responding to changing behaviors in the healthcare industry where narcotic painkillers were concerned. McKesson’s counsel sought to undermine the “gateway theory” that the use of narcotic painkillers by a patient inevitably leads to the use of heroin, illicit fentanyl or other illegal drugs. He placed blame for that use of illicit drugs on “criminals” who are unrelated to McKesson. Attorneys for the defendants further argued that the final disposition of the drugs after it left the suppliers’ control was out of their hands.
Confirming the focus that this argument will assume in the trial, the first expert witness called by the plaintiffs was an expert in the connection between prescription opioids and their illicit counterparts. Success by the plaintiffs on this argument has the capability to greatly expand the potential liability of the distributors.
In other related opioid litigation, another case involving four California municipalities – Los Angeles, Orange and Santa Clara counties and the city of Oakland- also began on March 3 against distributors Janssen Pharmaceuticals, Endo Pharmaceuticals, Teva Pharmaceuticals and Allergan PLC. Plaintiffs are seeking to establish that the distributor defendants engaged in deceptive marketing campaigns for prescription narcotic painkillers that resulted in the ensuing opioid crisis in their communities. An expert for the plaintiffs, University of Georgia professor Matthew Perri, used promotional literature for the opioid Kadian to show how sales reps for the drug were taught to overcome any fears shared by doctors who would prescribe the drug, using terms like “pseudoaddiction” and “opioid phobia”. The plaintiffs are also expected to bring in experts to testify as to the number of pills that made their way to California during the crisis; some estimates contend that 20 billion doses of opioid narcotics were sent to the state over a 20 year period. The municipalities are seeking $50 billion to help address the ongoing problem that they term a “public nuisance”.
New York’s Landmark Opioid Trial: Assessing Corporate Liability and the Public Nuisance Claim
Opening statements in the sprawling opioids trial pursued by the state of New York and Nassau and Suffolk counties against seven defendant manufacturers and suppliers began on June 29 with four hours of presentations. The case is the first one involving opioids to be heard by a jury and is so large it is being held in a 450-seat amphitheater at the Touro College Jacob D. Fuchsberg Law Center in Central Islip on Long Island and presided over by New York Supreme Court Justice Jerry Garguilo. The remaining defendants include drug manufacturers Endo Health Solutions and its affiliates, Teva Pharmaceuticals USA and its affiliates, and Cephalon Inc.; and distributors Cardinal Health, Amerisource Bergen, and McKesson Corporation. A number of the original defendants have, over the last several months, either declared bankruptcy, settled or been severed from the case. Purdue Pharma, the maker of Oxycontin, filed for bankruptcy in September, 2019, in the wake of thousands of opioid-related lawsuits, forcing litigation against it to stop. Similarly, claims against Mallinckrodt and Rochester Drug Cooperative will be handled through the bankruptcy courts. Another opioid supplier, Johnson and Johnson, reached a last minute settlement on June 26 in which the company pledged more than $230 million toward abatement costs suffered by the plaintiffs that are related to the opioid crisis. In addition, Walmart Inc., CVS, Walgreens and Rite Aid Corp. were severed from the trial in June following a petition to Judge Jerry Garguilo to have them removed. CVS has acknowledged that it settled the case for an unknown amount but all claims against the remaining three defendants will be pursued separately.
The opening arguments were framed by plaintiffs’ counsel to be easily understandable and relatable to the jury who will be tasked with evaluating the vast amounts of information and complex issues that will be presented to them in a trial expected to take several months. Counsel for the plaintiffs will argue that the defendants are responsible for the opioid drug overdoses that have led to the deaths of hundreds of thousands of people over the last two decades, contending that their misconduct and aggressive and misleading marketing tactics in the pursuit of profit contributed to a “public nuisance” in the form of the raging drug crisis. By ignoring obvious signs that the amount of drugs being supplied to any given doctor or pharmacy was suspiciously large, the companies failed to stem the tide and fueled the fires of addiction to opioids that also eventually served as a gateway to the rampant abuse of fentanyl and heroin. In its complaint, the state of New York claimed, “Drug manufacturers and distributors … with critical roles in preventing the misuse and diversion of controlled substances deliberately betrayed those duties through a persistent course of fraudulent and illegal misconduct in order to profiteer from the plague they knew would be unleashed.”
On June 30, counsel for the defendants countered with arguments that the opioids manufacturers and distributors were not responsible for the drug epidemic, contending that the state, which had access to information that would allow it to track the numbers and quantities of drug shipments, had failed to adequately monitor either the doctors who improperly prescribed the painkillers or the pharmacies that inappropriately filed the prescriptions. The defense argued that the state, in fact, encouraged “appropriate” opioid use, citing a 1998 publication from the New York State Public Health Council that described opioid use as part of a proper pain management regimen. Counsel also stated that when properly used to treat “bona fide” pain, addiction to opioids is rare. The attorney for Endo Pharmaceuticals stated that most opioid deaths result not from a person’s own prescriptions but from opioids that are prescribed to one person but taken or abused by another.
Testimony on July 7 provided jurors with a broad history of opioid addiction, beginning with Civil War-era drug use and leading to the recent relaxation of attitudes by the medical community about opioid use. According to expert testimony, prior to the twentieth century, opioids were prescribed with caution and their addictive properties were well known. In the 1990s however, doctors’ attitudes shifted and they were far more likely to prescribe opioids for non-cancer pain, largely as a result of aggressive marketing by the manufacturers and suppliers.
Although the complexity of the issues involved in this opioid lawsuit remains formidable, the New York trial will focus on a single issue – whether the defendants had incited the opioid crisis and created a public nuisance. Jurors are determining liability only but not any damages. Moreover this trial is focused on “abatement”, that is, addressing the costs accrued by the plaintiffs, mitigating any ongoing harm and seeking to prevent future crises through education and treatment programs.
Two other ongoing trials involving opioids are taking place in California against a number of manufacturers and West Virginia against a group of distributors, however both of these trials are being heard by a judge.
