Counties across America are signing up for the upcoming legal war against opioid addiction. Monday night, attorneys from law firms in Southwest Virginia, Alabama and Kansas City began courting the Board of Supervisors – seeking to be hired as Pulaski County’s soldiers in that war.
The opioid crisis in the U.S. has become a serious public health crisis. Drug overdose is the leading cause of death among Americans under 50, exceeding deaths from car accidents.
According to the information presented to the supervisors Monday night, the country has “become awash in opioids.”
In 2015, enough opioids were prescribed in the U.S. for every American to be medicated around the block for three weeks. Sine 1999, opioid overdoses have quadrupled in the U.S.
The attorneys charge that manufacturers have spent vast sums of money to fuel the epidemic.
They add that there are no studies that justify use of opioids for long-term chronic pain, yet opioids – thanks to a steady campaign of deceptive, “off-label-marketing” by drug companies and distributors – have become routinely prescribed on a long-term basis for management of chronic pain, despite their extremely addictive properties.
Sixty percent of drug overdose deaths come from opioid pain medicines, including hydrocodone (Vicodin, Lorcet, Lortab), oxycodone (Oxycontin, Percodan, Roxicet), methadone, fentanyl and morphine, as well as the street-drug, heroin, which is on the rise as the drug of choice for addicts making the transition from pain medications.
The attorneys blame the epidemic – in part – on the actions and deliberate inactions by the manufacturers and distributors of these opioid pain medications, which they say are in direct violation of statutory and common law duties.
Manufacturers and distributors, the attorneys say, have legal duties under Federal law to maintain controls against diversion of controlled substances into other than legitimate use. They also must disclose to the government any suspicious orders of controlled substances.
Manufacturers and distributors have, the attorneys charge, neglected these duties for increased profit. In fact, they say, major distributors have been fined by the Federal government for failing to meet their legal duties regarding opioids.
The attorneys expect the formation of a federal Multi-District Litigation (MDL) to consolidate claims by states, counties and cities against certain opioid manufacturers and distributors.
They say potential manufacturer defendants may include, among others, Purdue, Janssen, Endo, Allergan (formerly Actavis), Teva, Watson and Covidien. Potential distributor defendants may include, for example, McKesson, Cardinal and AmerisourceBergen.
The attorneys say localities are beginning to combat the epidemic in several ways, including law suits that seek to hold the primary wrongdoers accountable for their actions.
They say damages that Pulaski County may seek to recover could include reimbursement for Medicaid and other medical costs for care and treatment of overdose, addiction and over-prescription; additional costs of law enforcement, first responders, prosecutions, jails and facilities attributable to the opioid crisis; county-borne medical costs associated with babies born addicted to opioids, and costs of social services and child care and protection services associated with opioid-addicted parents.
The attorneys believe thousands of counties, cities and states will eventually join together to file such suits.
They add that, in addition to recovering money to reimburse local governments for their costs, the litigation may seek and result in meaningful industry reforms and compliance with existing laws that they say have been ignored for too long by manufacturers and distributors while reaping enormous profits by doing so.
Attorneys in town Monday night making the pitch to represent Pulaski County in opioid litigation included two who are somewhat familiar to local residents – Ben Chaffin, of Lebanon who serves as Pulaski County’s representative in the Virginia State Senate, and Jeff Campbell of Saltville who represents both Wythe and Smyth counties in the Virginia House of Delegates.
“The opioid crisis is one of the biggest issues we have had to face while in the legislature,” Chaffin said. “What it is doing to my home, your home, all of our homes. It’s ruining our families, our homes and our communities. It is breaking us as a people and as a society.”
Chaffin said he and Campbell and attorney Kim Hall of Abingdon began hearing of opioid litigation efforts across the U.S. and they began researching which law firms were out there with a national presence that could help Southwest Virginia localities.
They settled on three firms – Wagstaff and Cartmell of Kansas City, the Joey Dumas firm from Mobile, Ala. and Pascal Bruijn LLC of Minette, Ala.
Each of the firms, Chaffin said, have dealt with cases in the past involving pharmaceutical and medical device companies and have represented municipalities and states.
“The time has come in Southwest Virginia for our voice to be heard and for us to try and end what has been going on with the distribution of these drugs from pharmaceutical companies who have been making billions and billions of dollars, pushing these drugs out here that they absolutely knew were highly addictive,” Chaffin stated.
“America makes up only a fraction of the world’s population, but our part in the distribution of narcotics is 85 percent,” Chaffin told the supervisors. “This isn’t happening everywhere. It’s not a problem in China or Europe or the Middle East. It wasn’t going on 50 years ago, or 40 or even 30. It started when a couple of blockbuster drugs got rolled out and people liked them. Distribution of these drugs became really big because of the market that was there which was driven from the top.”
Campbell told the board he is aware of the pressures facing the Board of Supervisors in their budget work over costs associated with the opioid crisis.
“There are increased incarceration costs, foster care costs, Department of Social Services costs, treatment costs,” Campbell listed. Board Chairman Andy McCready interjected, “And it puts strain on our rescue squads, fire departments and mental health as well.”
Campbell said these costs will be significant to localities, and because of that he and Chaffin believe those localities “should have a seat at the table” when reimbursements come to localities because of litigation.
He said that is different form past tobacco litigation, in which many localities in Southwest Virginia failed to receive the benefits of litigation.
“We want to change that in this situation,” Campbell added.
He explained the large law firms represented at the meeting Monday night are taking on the opioid litigation on a contingency basis.
“Pulaski County won’s have to pay any money, the law firms are fronting all the costs and they will be significant,” Campbell told the board.
“Ben and I have skin in the game and that’s one reason we hope you’ll choose us. We will be accessible and available to you,” Campbell said.
Eric Barton of Wagstaff and Cartmell said the premise of litigation against pharmaceutical companies and distributors is simple.
“The basic contention is drug companies and distributors have created and profited from this public health crisis. Is it that simple? Of course not. Are there a lot of factors that go into opioid addiction? Of course there are,” Barton said.
“The drug companies have neglected their obligations under federal law and have allowed this epidemic to spread,” he added.
Noting the presence of Sheriff Mike Worrell in the room, Barton said, “I’m sure he can testify firsthand about how all this plays out.”
Later during the presentation, Worrell noted that his department responds to numerous over doses each week. “It touches all of us,” Worrell said.
Barton said drug companies do a lot of good things and make a lot of drugs that help the world. “But they also break rules sometimes, and when they do, they sometimes do it to make money and they make billions of dollars, he said noting he believes such is the case with opioids.
Barton said he expects suits filed in Federal courts will be among those that will be consolidated into litigation before a Federal judge in Cleveland, Ohio, while some localities may decide to file suit in State courts.
“The opioid crisis is a national health crisis, but one in which affects each county differently,” Barton said. “It affects different pockets and geographic areas differently. This is an area that is particularly hard hit. You all know that. That is one reason our firm is very interested in this area. Pulaski County and a number of surrounding counties share some factors that have made [the crisis] uniquely bad here.”
Barton explained that opioids are controlled substances, so both manufacturers and distributors – by Federal law – are regulated even more strictly than prescription drugs, which are regulated by the Food and Drug Administration.
“But under the Controlled Substance Act, both manufacturers and distributors have obligations to report to the Drug Enforcement Agency any suspicious transactions they are aware of,” Baron explained.
“Both manufacturers and distributors get information about where their drugs are going – they have to. They have to track them. That’s their obligation. Where are they selling these drugs? What is coming out in real numbers now is how dramatically both manufacturers and distributors have been ignoring that obligation. And in my opinion they have been ignoring it because selling them has been extremely profitable. To essentially cut off some pipeline where they are selling and selling and selling, hurts their bottom line and they’re not willing to do it.”
McCready noted a recent news article about a rural county in southern West Virginia that was seeing shipments of tens of thousands of opioids on a weekly basis, which far exceeded what the population of the county could reasonably absorb if everyone were taking opioids.
“They [drug companies and distributors] had to know something was going on,” McCready stated.
Barton said the opioid crisis began when drug manufacturers put out the message to doctors, the public and the medical community that the opioids they were developing – Oxycontin was the first, he noted – were basically safe and not addictive. He said the companies increased the marketing of the drugs as well.
“That flew in the face of a hundred years of medical knowledge that these drugs are in the category the medical community says are highly addictive. The ones they were putting out were no different,” Barton charged.
In a response to a question from McCready on prior litigation against Purdue, and whether or not Pulaski County could collect from them again, Barton said it could.
“There was a round of opioid litigation about 10 years ago. They (Purdue) paid fines to the Federal government and damages to some plaintiffs. But they have continued that conduct. The problem with litigation then was the companies – including Purdue – all wrote some checks to buy peace for the things they’d done that also helped get us where we are today. This time around, because counties are getting involved and the Federal government is getting involved in a bigger way, it is going to be treated like the public health crisis it is,” Barton explained.
McCready again questioned whether – win or lose – Pulaski County would have to pay any money in the case. Barton said that is correct.
“It is going to be a fight, but we think it is one that is working taking on,” Barton said.
Dumas, a former law officer turned attorney, said the United States population makes up only three percent of the world’s population. “But 85 percent of the opioids manufactured in the world are consumed here,” he said.
Dumas continued, “There are areas around here where the ratio of prescriptions [for opioids] is 400 prescriptions per 100 people per year.”
“I’m former law enforcement and I know exactly what the sheriff is saying. It’s not just opioids. If they can’t get opioids they’re getting heroin,” he said.
He said the crisis is leading to all sorts of drug problems which the sheriff’s department must deal with, which are costing his department’s budget tremendously.
“These are losses you’ve suffered in the past, and a problem in the future when everything does tighten down the way it should be and when you don’t have 400 prescriptions coming to 100 people per year. They’re going to get their fix somehow and that’s going to be more problems for the sheriff,” Dumas said.
Supervisor Joe Guthrie said the costs problems don’t stop with the sheriff’s department.
Dumas agreed, noting the opioid crisis also hurts the localities’ workforces because some employers can’t find enough people who can pass drug tests to fill available jobs.
McCready said he had recently served on the county’s Grand Jury, and that it was eye-opening how many identity thefts, forged checks, shoplifting crimes and others had occurred and where the underlying cause was drug addiction.
“It effects all our citizens when they become victims to support someone’s drug habit,” McCready said.
Dumas added that the opioid crisis “Know no boundaries.”
“I slammed my thumb in a car door recently. The doctor prescribed opioids, but I didn’t take them. Most people do, and in many cases it doesn’t take long to get addicted to them. The problem has no boundaries. I could have become addicted if I hadn’t known what they can do. I have a deputy friend that did get addicted,” he said.
The supervisors Monday night made no decisions on whether to join the opioid litigation, or whether they would have the lawyers in attendance act as the county’s representatives in future litigation.
By MIKE WILLIAMS, The Patriot