Federal Judge Dan Polster Allows Massive Opioid Suit to Go Forward

click to enlarge Federal judge Dan Polster - Photo courtesy Northern District Court
Photo courtesy Northern District Court
Federal judge Dan Polster

A lawsuit against drug companies by municipalities across the country including Cincinnati will go forward after a decision by federal judge in Northern Ohio yesterday.

U.S. District Court Judge Dan A. Polster, who sits on the bench in the Northern District of Ohio Eastern Division in Cleveland, refused a motion from drug companies to dismiss the multi-district lawsuit in a strongly-worded ruling.

“It is accurate to describe the opioid epidemic as a man-made plague, twenty years in the making,” Polster wrote in that ruling. “The pain, death, and heartache it has wrought cannot be overstated.”

The ruling simply allows the case to move forward and does not find any culpability or levy any damages to be paid by drug companies. However, it means attorneys will get an opportunity to prove that drug companies contributed to — and should help pay for response to — the opioid epidemic, which currently kills roughly 100 people a day across the U.S.

If municipalities suing win their case, it could set precedent for other lawsuits around drug companies' culpability for the opioid addiction epidemic.

Ohio had the second-highest rate of death from overdoses in the nation last year, behind West Virginia, with more than 46 overdoses per 100,000 people. Most of those deaths were attributed to opioids, which killed 373 people via overdose in Hamilton County in 2017.

A continued surge in those deaths over the past few years has a lot to do with additives like fentanyl, a synthetic opiate with 100 times more potency than heroin alone. The rise of fentanyl illustrates the role drug companies have played in the opioid crisis, some experts say.

Prescription drug companies first developed fentanyl in the 1960s to treat severe pain associated with surgery and certain cancers. It acts fast, is very powerful and can be obtained in lozenge and patch forms. Like many powerful opiates, it’s prone to abuse.

Dr. Neil Capretto, who treats addiction at the Gateway Rehabilitation Center in Pennsylvania, told NPR in 2016 that problems with fentanyl started with medical professionals.

“Patterns of abuse actually began with hospital workers, anesthesiologists and nurses,” Capretto said. “There were a rash of (them) dying from overdose. You’d hear of them getting it in the operating rooms by drawing out fentanyl from vials and putting saline in its place.”

A powdered form of fentanyl, called China White on the streets, rose to prominence in the 1980s. With the advent of the drug’s patch and lozenge forms, patients who had been legitimately prescribed fentanyl began abusing it more often as well. That dovetailed with an overall rise in prescription drug abuse that started in the 1990s and became a crisis in the last decade.

In the early 2000s, doctors began widely prescribing opiates like fentanyl, leading to a huge increase in abuse and addictions. The demand for those opiates was in large part driven by marketing pushes from major pharmaceutical companies, which funded academic studies, educational programs and medical groups like the Federation of State Medical Boards. Those organizations in turn endorsed increased use of opiates.

An article in the 2015 Annual Review of Public Health implicates the relationship between these companies and medical groups, and the role both played in pushing opiates.

“To overcome what they claimed to be ‘opiophobia,’ physician-spokespersons for opioid manufacturers published papers and gave lectures in which they claimed that the medical community had been confusing addiction with ‘physical dependence,’ ” the report says. “They described addiction as rare and completely distinct from so-called ‘physical dependence,’ which was said to be ‘clinically unimportant.’ They cited studies with serious methodological flaws to highlight the claim that the risk of addiction was less than 1 percent.”

One of those companies, Purdue Pharmaceuticals, paid $634 million in federal fines around those claims in 2007. Federal officials said the company learned in the mid-1990s that physicians weren’t prescribing opiates in non-cancer cases because they were worried about addiction, and then went about creating educational material and getting endorsements to assuage those fears.

Around the same time, medical professionals and federal officials were releasing a number of warnings about the dangers of opiates in general and fentanyl specifically.

But the damage was done. Prescription opiates, especially ones like OxyContin, became so popular that illegal labs known as pill mills began pumping out the synthetic narcotics to meet illicit demand. Law enforcement in Ohio, led by the attorney general’s office, clamped down hard on the industry beginning in 2011, raiding and shutting down pill mills and others dealing the drugs. Prescription pill overdose deaths then began dropping in the state.

The decrease in pill supply, however, led many to heroin, and, wittingly or unwittingly, to fentanyl. According to the federal government’s National Survey on Drug Use and Health, four out of five heroin addicts surveyed reported their addictions started with prescription opiates.

The current litigation is one of the largest and most complex civil suits in history, attorneys representing its plaintiffs say. Back in July, similar suits in federal jurisdictions around the U.S. were consolidated into a single case against pharmaceutical companies, pharmacies and distributors that make and sell opioids. In their suits, a number of cities in Ohio and beyond have accused the companies of aggressively marketing opioids despite knowing the high risk of addiction associated with the drug.

Cincinnati’s suit specifically named Pennsylvania-based AmerisourceBergen Drug Corp., Cardinal Health Inc. of Columbus and San Francisco’s McKesson Corp., which together account for roughly 85 percent of the nation’s prescription opioids. The suit alleges that in a five-year span starting in 2010, those companies distributed about 290 million doses of opioids in Hamilton County alone.

Attorneys representing the municipalities suing drug companies cheered Polster’s ruling yesterday.

“This ruling is a major step forward for the more than 1,500 communities across the country who have been battling the opioid crisis and demanding accountability from the opioid manufacturers, distributors and pharmacies that are responsible for creating the epidemic,” they said in a statement. “In 2019, we expect opioid manufacturers, distributors and pharmacies will finally be held to account for the public crisis they wrought when they fraudulently marketed and over distributed addictive and dangerous opioids.”
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