Legal fight over an epidemic

 

Tom Haley, executive director of the Turning Point Recovery Center in Bennington, stands in the meeting room of the center, which helps people who are recovering from addiction. photo by Joan K. Lentini

 

EVAN LAWRENCE
Contributing writer

BENNINGTON, Vt.

As opioid addiction has devastated families and communities across the nation, causing tens of thousands of premature deaths, more local governments are fighting back – in court.

Last month, the town of Bennington became the second municipality in Vermont to file a lawsuit against the pharmaceutical industry. The lawsuit, which town officials approved in July, seeks damages as well as reimbursement for the costs it has faced because of the opioid epidemic.
Vermont recorded 110 deaths from opioid overdoses last year, according to the state Health Department, and Bennington, a town of 15,000, has been averaging 10 deaths annually for the past few years, according to its lawsuit.

In filing a legal claim against the pharmaceutical industry, Bennington joins a series of other local governments in the region that have done so, including every area county in New York as well as the cities of Pittsfield and North Adams and two smaller towns in Berkshire County, Mass. In addition, the attorneys general of all 50 states have filed similar lawsuits.

The local governments that have gone to court say the opioid crisis is creating havoc in their communities and straining all kinds of public services -- from law enforcement and criminal justice to health programs and schools.

And the plaintiffs cite evidence that the epidemic is the direct result of drug manufacturers and distributors promoting their narcotics as safe, when in fact the drugs are highly addictive, and encouraging massive over-prescribing by doctors. By suing opioid manufacturers and distributors, local and state governments hope to recoup billions of dollars in direct costs plus additional funds that could pay for treatment and prevention.

Stillwater Supervisor Edward D. Kinowski, then the chairman of the Saratoga County Board of Supervisors, summed up the local governments’ case in a statement announcing his county’s lawsuit two years ago.

“The ease of access and over-prescription of these dangerous drugs has led to the death of too many of our friends and neighbors,” Kinowski said. “The misrepresentation of the nature of these drugs has led to an alarming rise in addiction and overdoses.”

 

Fueled by prescriptions
Purdue Pharma introduced OxyContin, a synthetic opioid drug, in 1995. Over the next 20 years, Purdue and other pharmaceutical companies insisted to regulators and health care providers that OxyContin and similar opioids had a low risk of addiction and could be prescribed safely for long periods.

That turned out to be far from true. Dr. Richard Dundas, speaking at a Bennington Select Board meeting last year, explained that about 15 percent of people who take a narcotic pain reliever for eight days will still be on it a year later. He said 60 percent of opioid addictions start with a prescription from a doctor or dentist.

Addicts’ families can fill in the rest of the story: When the prescription ends, the victim turns to black market pills or street heroin, which is often laced with an even more powerful opioid, fentanyl.

Addiction is “a disease, not a weakness or character flaw,” Dundas told the board. “It’s a chronic disease with a tendency to relapse.”

The region’s epidemic of addiction has continued to worsen over the past decade. Vermont’s 110 overdose deaths last year were nearly triple the number recorded in 2010. The state Health Department’s report on 2018 opioid deaths says many of last year’s overdose victims had more than one drug in their system, most often fentanyl in combination with heroin and/or cocaine, while 28 percent of the deaths involved prescription opioids alone.

Newly compiled federal data show the breadth and depth of the opioid crisis both nationally and locally.

In July, The Washington Post published a series of reports based on its analysis of opioid pill distribution data from 2006 to 2012, which the Post and a smaller newspaper in West Virginia were able to obtain after a legal fight with the U.S. Drug Enforcement Administration. The data, from a DEA database, tracked the distribution of every opioid pain pill to every county and pharmacy in the United States.

The newspapers’ analysis revealed that in parts of Ohio and Appalachia, the numbers of opioid pills shipped to pharmacies in some counties was enough to provide hundreds of pills to every county resident. The federal data also show the quantities of pills shipped by each manufacturer and wholesaler.

Over the six-year period covered by the data, Berkshire County, Mass., received 32 million opioid pills, the equivalent of 35 pills per resident per year. In Vermont, Bennington County was the destination for 8 million pills, or 31 per person per year. Rutland County received nearly 11.5 million, or 26 per person per year.

In New York, nearly 14 million pills, or enough for 31 per person per year, went to Columbia County. Rensselaer County received about 30.5 million, or 27 per person per year. Shipments to Saratoga County came to 42 million pills, or 27 per person per year. Warren County received slightly more than 20 million, enough for 43 per person per year. Washington County’s share was 12.6 million, or 28 per person per year.

The per-capita numbers in Vermont “may not pop compared to other places,” said Andrew Miller, senior litigation counsel at Sanford Heisler Sharp LLP, one of two law firms handling Bennington’s suit against opioid manufacturers and distributors. But he warned against comparing communities with each other.

The real question, he said, is “how does this compare to a reasonable amount of drugs going to a community, and how it would look if the drugs were used appropriately? The numbers no matter how you parse them tell a compelling story.”

Pharmaceutical companies, he added, “put profits over safety.”

 

Many claims, many defendants
Among the opioid lawsuits filed by state governments, Massachusetts Attorney General Maura Healey was the first to name members of the Sackler family, the owners of Purdue Pharma, as defendants.

In Vermont, Attorney General T.J. Donovan is advising cities and towns about whether they should file their own lawsuits and is investigating other manufacturers, distributors and retail outlets for possible legal action.

The New York, Massachusetts, and Vermont attorneys general, among others, rejected a proposed $12 billion settlement offer from Purdue in September, calling that sum inadequate.
More than 2,600 local governments and tribal nations have sued the opioid industry. The Florida law firm of Levin Papantonio Thomas Mitchell Rafferty Proctor is handling more than 700 cases, including one filed by the city of Pittsfield. The lawsuits may be filed in state or federal court over alleged violations of state and federal laws, including consumer fraud.

One major charge in the municipal lawsuits is that wholesalers violated the 1970 federal Controlled Substances Act, which requires them to report suspicious opioid purchases to the DEA.

The suits name many different defendants, though Purdue Pharma is almost always among them, because the company is generally regarded as the originator of the epidemic. But Purdue now produces only about 3 percent of the national supply of opioids, with other companies making up the majority.

Defendants may also include wholesalers such as McKesson Corp. and pharmacies and their operators, such as CVS and Wal-Mart.

Opioid lawsuits have been filed in a variety of state and federal courts. Hundreds have been consolidated in the U.S. District Court for the Northern District of Ohio, where Judge Dan Polster is pushing for settlements. Many suits are pending in other courts.

Late last month, two Ohio counties and four drug companies agreed to settle a case that was about to go to trial in Polster’s courtroom. Some experts said the $260 settlement between the counties and four defendants – opioid distributors AmerisourceBergen, Cardinal Health, McKesson Corp., and drug maker Teva Pharmaceuticals – could provide a model for settling opioid claims brought by other local governments. But that will be subject to further rounds of negotiation.

 

Bennington’s path to court
Bennington was the first town in Vermont to file its own suit. (The city of St. Albans was the first municipality.) The action, filed by the Washington, D.C., office of Sanford Heisler Sharp LLC and The Cicala Law Firm of Dripping Springs, Texas, went directly to the consolidated suits in Ohio.
The town’s suit names Purdue Pharma, nine other manufacturers, seven distributors, four pharmacies, and three pharmacy benefit managers as defendants, Town Manager Stuart Hurd said.

“Pharmacy benefit managers select preferred drugs and reduce the prices for those they say are most effective,” Hurd explained. “The attorneys say that the pharmacy benefit managers were paid by the manufacturers to push opioids above other non-opioid or less addictive drugs.”
Pharmacy benefit managers include the companies Express Scripts Inc. and Caremark Rx LLC, which are both named in the town’s suit.

Hurd said the town Select Board was approached last year by local activists who urged Bennington to sue for funds to support opioid addiction prevention and treatment. A lawyer the activists had talked to suggested the two law firms the town is using, Cicala and Sanford Heisler Sharp, which work together on different aspects of opioid lawsuits.

The firms made a presentation to the town, and the board voted to retain them.
“It was an attractive offer,” Hurd said. “They are incredibly informed and had a ton of data. We could never have acquired that information.”

The law firms are working on a contingency basis: They absorb all the costs up front and take 25 percent to 30 percent of any settlement, so the town pays nothing.
Hurd said he doesn’t know how much opioid abuse has cost the town.
“I haven’t quite figured out how you quantify that,” he said.

The town’s resources, he said, are being drained by police department time spent on opioid-related emergencies and crimes, medical crisis intervention, and treatment for people trying to go clean. He acknowledged that the legal process for recovering these costs could take awhile.
“We’re in it for the long haul,” Hurd said. “We’ve met with other Vermont municipalities and attorneys to encourage others to join us. The more of us, the stronger the suit.”

If the state’s separate lawsuit is successful, Hurd said he hoped all towns in Vermont could receive funds for treatment and prevention. Funds from the tobacco settlement in 1998 went into the state’s general fund, he said.

“The attorney general has said that won’t happen with any opioid settlement,” Hurd said. “If there’s a settlement to be made directly [in the town’s lawsuit], we can control how those funds are used and attack addiction at its roots.”

Miller, at Sanford Heisler Sharp, said the firm’s contract with Bennington is an outgrowth of its work with several counties in Virginia.

“There are a lot of similarities between the Virginia and Vermont cases,” he said, notably “theories of the defendants’ liabilities.”

The Vermont case has claims under state and federal laws, so if it’s not resolved in Ohio, it could be sent back to federal court in Vermont, he said.

Miller said the firm is representing other Vermont municipalities, but he said he wasn’t free to identify them. The city of Rutland has talked with the state attorney general about filing a lawsuit but has not committed.

 

Seeking funds for treatment
Much of the front-line work in dealing with opioid addiction is being handled by families and private nonprofit groups that aren’t a party to the government lawsuits.

 

 

The nonprofit Turning Point Recovery Center in downtown Bennington is seeking town funds to help support its work helping people recovering from opioid addiction. Last month, the town sued the pharmaceutical industry in an effort to recoup costs related the the opioid epidemic. Joan K. Lentini photo

 

 

In Bennington, for example, the Turning Point Recovery Center is a local nonprofit whose mission is to help people stay in recovery from addiction.

Tom Haley, the group’s executive director, said the area’s first need for fighting opioid abuse is “more beds for people.”

The nearest treatment centers in Vermont for people with opioid addiction are in Brattleboro and Rutland, each more than an hour away.

“If people need to be in treatment, oftentimes we can’t get them in,” he said.
Another challenge is what happens to people who’ve completed treatment programs.
“People go away, get clean for 30 days, and have nowhere to go when they’re released,” Haley said. “They go back to where they existed -- I won’t say lived -- before treatment.”
All too often, returning to the same living quarters and social networks, they relapse. Creating special recovery housing would “provide the infrastructure people need to sustain recovery and build on it,” Haley said.

Turning Point is petitioning residents to be put on the town meeting ballot for taxpayer funds, Haley said.

“There are good people and good agencies doing their best, but the resources are finite,” he said.

 

‘Something needs to be done’
In New York, counties that have filed opioid lawsuits include Albany, Columbia, Rensselaer, Saratoga, Warren and Washington, while the cities of Albany, Schenectady and Troy also have sued.

The Saratoga County Board of Supervisors voted unanimously to file suit in October 2017 and retained the firm of Napoli Shkolnik PLLC of New York City. In January 2018, the board took the additional step of declaring opioids a public nuisance. That strengthened the lawsuit and allowed the board to set procedures for recovering funds the county had spent on opioid-related services. The suit is pending in state Supreme Court, the trial-level court in New York.

Saratoga County Administrator Spencer Hellwig said the epidemic has had “substantial impacts on law enforcement, social services, public health, and mental health services, which are funded by the taxpayers.”

Although the county and other municipalities are seeking reimbursement for costs they’ve born directly, Hellwig and others pointed out that the true costs of the epidemic is much greater.
“Nonprofits are dealing with crisis intervention,” he said. “There’s kind of a unified sense of betrayal by the pharmaceutical companies that created this epidemic. I talked with individuals who all said, ‘Something needs to be done.’”

The board interviewed several law firms and chose Napoli Shkolnik “based on its track record,” Hellwig said. The firm is representing several other New York counties with opioid claims.
Suits brought by Nassau, Suffolk, and Westchester counties in New York are about to go to trial, Hellwig said.

“We’ll be watching that closely,” he said. “How the court rules will provide some insight. There’s been significant resistance from the companies to accept responsibility for creating and maintaining an environment that keeps people addicted.”

How would the county spend any funds it might be awarded?
“The county has already spent the money,” Hellwig said. “The epidemic has diverted county resources. Beyond that, the funds will cover providing services to impacted residents.”

 

A push for accountability
In Berkshire County, the cities of Pittsfield and North Adams and the towns of Clarksburg and Sheffield have all filed opioid lawsuits. Pittsfield’s City Council voted unanimously in February 2018 to sue opioid wholesalers; the city’s suit alleges that distributors violated federal regulations about distributing opioids and flooded the market, leading to a high per-capita overdose rate in the city.

In an e-mail, City Solicitor Stephen N. Pagnotta wrote that because the litigation is ongoing, there was little information he could share.

“However, it is indisputable that the city of Pittsfield has witnessed first-hand the devastation and human misery caused by the opioid epidemic,” Pagnotta wrote. “Our residents, their families, and our businesses have all been impacted by this tragedy. The opioid epidemic has strained our schools, police department, emergency responders, hospital, medical, and social services providers. Because the city feels strongly that those who profited from this scourge should be held responsible for their actions, it joins many other towns and cities throughout the U.S. in class action litigation occurring in several jurisdictions simultaneously.”

Miller, at Sanford Heisler Sharp, said his firm’s partner Kevin Sharp resigned his position as a federal judge in Tennessee and joined the law firm “in large part because of opioids.
“He saw first-hand the misery they were causing,” Miller said. “What he could do on the bench wasn’t sufficient. I and others at the firm have been touched by the opioid epidemic. This is largely motivating our work.”

Miller said he couldn’t predict how the many lawsuits will wind up being resolved.
“These are really complicated cases with many defendants,” he explained. “They may go on for a long time. The best outcome is that towns and counties can be fully and fairly compensated and get programs in place as soon as possible for treatment and prevention.”

Many people involved in the opioid lawsuits are haunted by the specter of what happened to funds from the 1998 settlement of a multi-state lawsuit against the tobacco industry over tobacco-related illnesses, Miller said. States continue to collect billions of dollars of revenue annually from that settlement, but most have been putting the money into their general funds or spending it on needs unrelated to the public health costs of tobacco use.

“This has to be different,” Miller said. “Counties, towns, and cities have to be extremely active and speak up for themselves. They won’t be taken care of unless they take care of themselves.”