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BMD Seeking Recovery for Opioid Losses on behalf of Summit County and its Political Subdivisions

News Article

As the opioid epidemic continues to take its toll on our community, its resources and straining the already tight budgets, Brennan Manna & Diamond, on behalf of Summit County and its political subdivisions, filed a complaint against those companies that make or distribute prescription opioids seeking recovery of the County's losses as a result of the opioid crisis. 

See today's New York Times features the lawsuit. 

With Overdoses on Rise, Cities and Counties Look for Someone to Blame


AKRON, Ohio — Citing a spike in overdose deaths, growing demands for drug treatment and a strained budget, officials here in Summit County filed a lawsuit late Wednesday against companies that make or distribute prescription opioids. On Monday, Smith County in Tennessee did the same. And on Tuesday, nine cities and counties in Michigan announced similar suits.

Cities, counties and states across the country are turning to the courts in the spiraling opioid crisis. What began a few years ago with a handful of lawsuits has grown into a flood of claims that drug companies improperly marketed opioids or failed to report suspiciously large orders. Close to 200 civil cases have been filed by local governments in the federal courts; dozens of other suits are playing out in state courts; and attorneys general from 41 states have banded together to explore legal options.

“There’s a new case being filed virtually every day, and I don’t see any end in sight,” said Paul J. Hanly Jr., a lawyer who represents some of the local governments.

Scores of plaintiffs’ lawyers met in Cleveland this week, where a judge has been assigned to oversee at least 189 of the federal cases — an indication, some lawyers say, that the legal fight could start to move more quickly and that its disparate strands might be worked out in one place. Some lawyers liken the situation to the state litigation against the tobacco industry in the 1990s, which ended with a global settlement, and involved some of the same lawyers.

 “This litigation is like a big hammer — it’s like a tool where you’re hitting somebody upside the head to get their attention,” said Mike Moore, who as Mississippi attorney general filed the first state case against the tobacco industry in the 1990s and who now represents some government entities. “We have a public health emergency. It’s time to quit talking about it and, if people are serious about fixing it, let’s sit down and resolve it.”

Representatives for some of the drug makers and distributors deny the claims in the lawsuits and say they intend to vigorously defend their companies. In written statements, several companies pointed to efforts that they and industry groups have taken to stem opioid abuses and noted the role of the federal authorities, including the Food and Drug Administration, in overseeing their products. They also rejected comparisons to tobacco.

“Unlike the past tobacco litigation, our medicines are approved by F.D.A., prescribed by doctors, and dispensed by pharmacists, as treatments for patients suffering from severe pain,” Robert Josephson, a spokesman for Purdue Pharma, which developed OxyContin, said in a written response to questions.

Here in Akron, officials said legally prescribed painkillers were often a precursor to addiction, overdose and drug abuse. Nanette Kelly, an Akron resident, said she became hooked on prescription pain pills after a back injury years ago and eventually turned to heroin.

“It’s hard to stay straight and be good,” said Ms. Kelly, who is undergoing treatment, “because there’s just heroin everywhere.”

Matthew J. Maletta, executive vice president and chief legal officer at the drug company Endo, said a comprehensive solution “must not only consider the product supply chain, but also individual patient risk factors and the role of prescribing health care providers.” Criminal trafficking of the drugs, including illegal internet sales and importation, also must be addressed, he said.

The legal battle is playing out as the sale of prescription opioids, which include oxycodone and hydrocodone, have quadrupled since 1999, as have overdose deaths. More than 183,000 people died from overdoses tied to prescription opioids in the 15 years leading up to 2015. Life expectancy in the United States dropped for the second year in a row in 2016, federal officials reported this week, largely driven by drug overdoses, the vast majority of which were opioid-related. And the larger drug crisis, including heroin and fentanyl obtained illicitly, is swamping the resources of local governments and draining their budgets, officials say.

Summit County officials say they spent $66 million dealing with the crisis between 2012 and last year. The county’s child protective agency spent more than $21 million in that period relocating children from homes where a relative was using opioids. Akron firefighters average around 100 overdose responses each month. And a mobile morgue was brought in when the medical examiner ran out of room.

“We’ve had enough here,” said Ilene Shapiro, the county executive, who has declared a public health emergency. She said she hoped the courts could force changes in the way the drugs are marketed and, perhaps, impose a hefty financial settlement or judgment.

In Barberton, a small city in Summit County that is also suing, rookie police officers must quickly master how to make death notifications, how to refer addicts to treatment and how to administer Narcan, the overdose antidote. The police chief, Vince Morber, said the pharmaceutical companies “owe us an apology.”

“They absolutely knew what they were doing: Their business practices, the way they did it, the way they marketed it,” said Chief Morber.

But legal experts said the lawsuits against the drug makers and distributors are anything but simple. The cases vary when it comes to the companies they name as defendants and are complicated by all sorts of elements — including the roles of others in what has happened, from medical doctors to heroin dealers to the F.D.A., which regulates prescription medications.

“My guess is that nobody wants to really try these cases,” said Richard C. Ausness, a professor at the University of Kentucky College of Law.

Critics say the litigation is a sideshow in the opioid debate — a chance for lawyers to make money and politicians to make headlines — rather than a lasting solution in the overwhelming crisis, which the president’s Council of Economic Advisers last month estimated as having cost $504 billion in 2015.

“Indeed, by allowing them to take credit for doing something about the problem, the lawsuits may take the pressure off of public officials” to make real changes, Lars Noah, a professor at the University of Florida College of Law, said.

But lawyers for some counties, cities and states say the litigation could force real changes, such as far wider availability of overdose antidotes, sufficient money to get all addicts into treatment, and the development of a robust prevention and education program. The consolidation of the federal cases in a so-called multidistrict litigation could also speed the process, the lawyers said.

“It’s a major opportunity to have a significant impact on this health epidemic now and not five years from now,” said Joseph F. Rice, whose firm, Motley Rice, represents some of the cases, and who played a central role in negotiating the tobacco settlement. “Will the parties take advantage? Will the court take advantage? That’s yet to be seen.”

In Summit County, the number of fatal drug overdoses has subsided slightly since a peak of 298 last year, but paramedics, politicians and law enforcement officials still view opioids as an uncontained epidemic with no easy fixes.

Firefighters say they sometimes revive the same person again and again, and the medical examiner has gotten used to notifying families of drug deaths of multiple relatives. One woman lost two siblings and two nephews to overdoses in less than a year. Charlene Maxen and her husband, Jim, lost their two sons to opioid overdoses in the same month in 2015.

“I used to look at people that never had a family and say, ‘What do they do when they get old?’” said Mr. Maxen, a retired accountant. “We’re going to find out.”

Dan Horrigan, the mayor of Akron, said the crisis had become “a gut punch to the community, and we need to be able to get a handle on it.” He said a number of ground-level efforts to help addicts here showed promise, but “there is a fire going on and it needs more water to put it out.”

Among the signs for hope: A health clinic that opens before dawn and provides methadone for people seeking to end their opioid addictions; home visits by city workers offering help to people who recently overdosed; and Judge Joy Malek Oldfield’s drug court, where a stream of young defendants approached the bench on Monday to receive praise, scoldings and even applause.

“When you get sober, it’s not just rainbows and unicorns,” the judge told one. “But it’s a better life, don’t you think?”

Judge Oldfield said about 90 percent of people in drug court were addicted to opiates, which she called “much more difficult to manage” than other addictions. One man, shackled and clad in an orange jail jumpsuit, appeared in front of her again on Monday. He had relapsed not long ago.

“I’m glad you’re alive,” Judge Oldfield told him.

Mitch Smith reported from Akron, and Monica Davey from Chicago.

For more information, contact one of BMD's Litigation Practice Members


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