April 2, 2018
Focus on health care

Charlton, Worcester lead charge against opioid makers

PHOTO/NATHAN FISKE
Robin Craver, town administrator in Charlton, intends to join the MOLA lawsuit not only because of the seven confirmed opioid-related deaths in the town since 2012 but because of the cost of responding to opioid-related crimes and crises.

In the 1990s, there was retribution for the public health damage done by tobacco companies, when four major tobacco companies agreed to pay a minimum of $206 billion in damages over 25 years in a settlement with 44 U.S. states seeking recovery of tobacco-related healthcare costs.

Now, the pharmaceutical manufacturing and distribution industry could be on track to settle another landmark public health lawsuit, as municipalities across the U.S. file suit seek damages for costs stemming from the opioid crisis that built to a crescendo of deadly overdoses in 2015, roughly two decades after opioids became the usual prescription for pain caused by anything from back surgery to chronic pain conditions and dental work.

In March, the City of Worcester joined more than 50 other Massachusetts cities and towns pursuing payback for the cost of addiction. City Manager Edward Augustus' office on Feb. 28 announced Worcester planned to file a lawsuit in Massachusetts Superior Court against manufacturers and distributors, alleging, as other communities have, drugmakers were deliberately deceptive about the safety and appropriate use of opioids, resulting in catastrophic public costs in Worcester

Small town problems

Robin Craver, town administrator in Charlton, which intends to file a lawsuit with the help of a consortium known as Massachusetts Opioid Litigation Attorneys (MOLA), said South Central Massachusetts has been hard hit.

A Webster resident, Craver has seen people passed out on the road in the middle of the night, ostensibly under the influence of opioids – often heroin, which people end up using when they lose access to prescription opioids.

Craver said she brought the lawsuit forward after being contacted by a MOLA attorney, suggesting Charlton pursue litigation. At least 10 other towns have engaged with MOLA about filing a lawsuit, including Auburn, Dudley, Douglas, Hopedale, Leicester, Leominster, Northbridge, Southbridge, Spencer and Winchendon.

For small towns, the costs of a drug crisis add up, Craver said, with police responding to increased breaking-and-entering calls, and encountering dangerous and more time-consuming situations on the job.

"The taxpayers have been subsidizing the fallout from the opioid epidemic … and it's time stand up and say, 'No more,'" Craver said.

Quantifying the cost

Worcester didn't quantified the cost of responding to and trying to stem the opioid crisis in its lawsuit. Details about the costs will be determined during the discovery phase of the case, though it's unlikely a dollar figure will be provided, said Worcester City Solicitor David Moore. Damages will be determined by the court. "We have a duty to file the suit and return as much funding as we can," Moore said.

While the city doesn't have an accounting of expenditures, the opioid crisis has been costly. Moore said the city has spent money on emergency response within the police and fire departments; training employees to use Narcan, a drug that blocks the dangerous effects of opioids in emergency situations; recovery programs; and health insurance claims for city employees and their dependent family members who have struggled with addiction.

In addition to getting money to recoup spending on these items, Moore said the city is looking for the court to impose measures to prevent similar problems in the future.

"We want to see some injunctive measures for these companies going forward in hopes of containing this epidemic," Moore said.

Worcester's strategy is a departure from other cities and towns filing lawsuits like Charlton. The MOLA consortium is leading litigation for four other communities with filed lawsuits in federal court in Massachusetts, including Greenfield, Revere, Methuen and Woburn. The lawsuits are separate but communities can leverage work done by MOLA by filing with the consortium.

The same group is expected to file dozens more on behalf of about 40 cities and towns voting to move forward to lawsuits, said Tucker Merrigan, one of the MOLA attorneys.

Worcester officials were advised by the Connecticut law firm they've hired to lead the litigation, Scott & Scott, Attorneys at Law LLP, to pursue litigation in Superior Court, said Moore. Most other Massachusetts cities and towns will file under the direction of MOLA in federal court, and those lawsuits are being handled by a federal judge in Ohio, who is managing lawsuits for municipalities all over the U.S.

If they go to trial, they will end up back in a Mass. federal court, Merrigan said, but the discovery phase will be streamlined in the Ohio federal court.

"There's a better chance for a better result for the city to be one of a small number [of cases] in state court than being one of a large number in federal court," Moore said.

Litigation won't cost Worcester any money up front, as attorneys are working on a contingency basis and won't get paid unless damages are awarded.

Edward Augustus, Worcester City Manager

Moore said he is confident about Worcester's chances of receiving damages, but any city or town taking on the pharmaceutical industry faces a formidable opponent. Big pharma companies making opioids like Connecticut-based Purdue Pharma and Israel-based Teva Pharmaceutical Industries rake in tens of billions of dollars and have ample resources to defend themselves.

Misguided lawsuits?

Interestingly, Worcester did not name any drug manufacturers specifically when it announced it would file suit, but did call out major drug distributors, including Pennsylvania-based AmeriSourceBergen Drug Corp., Ohio-based Cardinal Health Inc. and Ludlow-based McKesson Corp., when it announced plans for a lawsuit.

John Parker, senior vice president of the Healthcare Distribution Alliance, the national trade association representing drug distributors, responded to the Worcester lawsuit and others, saying distributors don't drive demand for opioids.

"Tying those pieces together … seems to be misguided and misinformed in terms of the way the system works," Parker said.

But Merrigan, the MOLA attorney, said drug distributors are bound by the federal Controlled Substances Act of 1970, which, among other things, requires distributors to report prescription drug orders unusual in terms of size, frequency and location.

Perhaps the most notable example of distributors failing to adhere to the law was a report about drug companies shipping 21 million opioid prescriptions to just two pharmacies in a small West Virginia town between 2006 and 2016. But Parker said the federal Drug Enforcement Administration hasn't provided clear-cut guidelines for what constitutes reportable activity.

"We've been asking the DEA for greater clarity of the roles and responsibilities as it relates to reporting," Parker said.

Merrigan said plaintiffs filing lawsuits through MOLA are hoping to get access to the Congressional data used to inform the West Virginia report during the discovery phase. So far, examples of blatant overprescription haven't been pinpointed.

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