The Consequences Of The Opioid Epidemic

On Oct. 26, 2017, President Trump declared that the opioid crisis has become a national public health emergency impacting nearly every community across the U.S. and its territories. The pharmaceutical manufacturers, distributors and sellers have earned billions of dollars peddling their addictive and life-threatening prescription opioid drugs while systematically misleading doctors, patients, federal and state regulators, health and welfare insurers and funds about the true risk of opioid addiction. The drug companies misrepresented the efficacy of their respective opioid drugs, intentionally diminished the associated health hazards and conspired with key opinion leaders to increase their sales and profits despite the known risks and dangerous propensity of their drugs.

At the Cleveland law firm of Kelley Ferraro, LLC, our trial lawyers have over 25 years of experience litigating on behalf of personal injury victims in Ohio and across the nation. We will fight for your right to recoup your losses due to the opioid epidemic. Visit our opioid litigation page to learn more about how we can help you.

Below are a few points regarding the damage caused by opioids:

• Opioids claimed 183,000 American lives from 1999-2015, and this number has only continued to grow.
• From 1999 to 2010, a 4-fold increase in opioid sales paralleled a more than 4-fold increase in prescription opioid overdose deaths.
• In the United States, prescription opioid abuse costs are about $55.7 billion annually (CDC, Prescription Drug Overdose data).
• Drug overdose is the leading cause of accidental death in the United States.
• 91-155 Americans die every day from opioid overdose.

The claims against the manufacturers and distributors of opioid pain medications, and key opinion leaders are, among other claims, deceptive business practices, false advertising, public nuisance, violations of social service/Medicaid law, fraud and unjust enrichment. The claims are largely based on the deceptive practices that the defendants used to reach prescribers and patients. The overarching theme of the defendants’ deception is that opioid pain medications are not addictive and are safe for long-term chronic pain use.

States and dozens of municipalities have already filed lawsuits against these companies for their responsibility in creating the opioid epidemic. Indeed, on Dec. 5, 2017, the United States Judicial Panel on Multidistrict Litigation (“MDL”) entered a Transfer Order establishing an MDL in the case styled, In re: National Prescription Opiate Litigation, Case MDL No. 2804, in the U.S. District Court for the Northern District of Ohio located in Cleveland.

The majority of the cases that are being transferred to the MDL consist of civil actions brought by cities, counties and states that allege that: (1) manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed (directly and through key opinion leaders) these drugs to physicians, and/or (2) distributors failed to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates.

The Judicial Panel found that all of the actions pending before it involve common factual questions about, inter alia, the manufacturing and distributor defendants’ knowledge of the conduct regarding the alleged diversion of these prescription opiates, as well as the manufacturers’ alleged improper marketing of such drugs. The Judicial Panel also noted that the actions allege that both manufacturers and distributors are under an obligation under the Controlled Substances Act and similar state laws to prevent diversion of opiates and other controlled substances into illicit channels.

Theory Of Liability

	Manufacturer/Distributor	Drug	Schedule
1.	Purdue Pharma, L.P.; Purdue Pharma, Inc.; The Purdue Frederick Company	OxyContin, MS Contin, Dilaudid, Dilaudid-HP, Hysingla ER, Targiniq ER	Schedule II
		Butrans	Schedule III
2.	Teve Pharmaceuticals USA, Inc. and Cephalon, Inc., a unit of Teva Pharmaceuticals	Actiq, Fentora (both Fentanyl Citrate	Schedule II
3.	Janssen Pharmaceuticals, a wholly owned subsidiary of Johnson & Johnson	Duragesic (Fentanyl, Nucynta and Nucynta ER	Schedule II
4.	Endo Health Solutions, Inc. and Endo Pharmaceuticals, Inc.	Opana ER, Opana, Percodan Percocet	Schedule II
5.	Qualitest Pharmaceuticals, Inc., a subsidiary of Endo Health, Inc.	Generic oxycodone, oxymorphone, hydromorphone, and hydrocodone products	Schedule II
6.	Allergen PLC, Actavis PLC, Watson Pharmaceuticals, Inc.	Kadian, Norco and Generic versions of Duragesic and Opana	Schedule II
7.	McKesson Corporation	Distributor
8.	Abbott Laboratories	Distributor
9.	AmerisourceBergen Corporation	Distributor
10.	Cardinal Health	Distributor
11.	Key Opinion Leaders and Individual Representatives and/or Consultants

The claims against the manufacturers of opioid pain medications include claims of deceptive business practices, false advertising, public nuisance, violations of social services/Medicaid law, fraud and unjust enrichment. The claims involve the deceptive practices of the manufacturer defendants’ in using both branded and unbranded marketing to reach prescribers and patients. Unbranded marketing through the use of front groups such as the American Pain Foundation, attempted to evade FDA regulations and consumer practices law.

The overarching theme of the manufacturing defendants’ deception is that opioid pain medications were not addictive and were safe for long-term use. Defendants knew that opioids were effective treatments for short-term post-surgical and trauma-related pain, and for palliative (end-of-life) care. Yet they also knew — and had known for years — that opioids were addictive and subject to abuse, particularly when used long-term for chronic non-cancer pain (pain lasting three months or longer), and should therefore be used only as a last-resort.

Defendants spent hundreds of millions of dollars: (a) developing and disseminating seemingly truthful scientific and educational materials and advertising that misrepresented the risks, benefits, and superiority of opioids long-term use to treat chronic pain; (b) deploying sales representatives who visited doctors and other prescribers and delivered misleading messages about the use of opioids; (c) recruiting prescribing physicians as paid speakers as a means to secure those physicians’ future “brand loyalty” and extend their reach to all physicians; (d) funding, assisting, encouraging, and directing certain doctors, known as “key opinion leaders,” not only to deliver scripted talks, but also to draft misleading studies, present continuing medical education programs that were deceptive and lacked balance, and serve on the boards and committees of professional societies and patient advocacy groups that delivered messages and developed guidelines supporting chronic opioid therapy; and (e) funding, assisting, directing, and encouraging seemingly neutral and credible professional societies and patient advocacy groups (“Front Groups”) that developed educational materials and treatment guidelines that were then distributed by Defendants, which urged doctors to prescribe, and patients to use, opioids long-term to treat chronic pain.

Under a negligence theory claims can be brought against wholesale distributors of these opioids. Pursuant to federal and state law, wholesale distributors have a duty to report suspicious or alarming orders of opioid pharmaceuticals and to report these orders. The evidence shows that these defendants failed to meet this duty despite overwhelming evidence that these drugs were being abused, diverted and misused based on the alarming size of the orders.

Theory Of Damages

The Centers for Disease Control and Prevention estimates the annual economic burden of prescription opioid abuse in the United States to be $78.4 billion. This was broken down into categories, many of which are shouldered by governments, municipalities and communities, as follows:

• Lost productivity – $42 billion
• Health insurance – $26.1 billion
• Criminal justice – $7.6 billion
• Substance abuse treatment – $2.8 billion

Many of these costs are covered by government, municipalities and communities. These cases seek to recover those costs, including costs for opioids and social costs, and costs related to addiction treatment, programming and training, healthcare, criminal justice and victimization, as well as lost productivity.

These lawsuits will seek to achieve financial recovery for the costs associated with this epidemic, including substance abuse programs, insurance/Medicaid, lost productivity, foster care costs, Narcan training and supplying and increased law enforcement. It is our hope that these lawsuits will help governments, cities and municipalities receive funding to help in the fight against this epidemic.

The below is an initial list of costs and expenses that may be recoverable in a lawsuit against the manufacturers and distributors of opioids.

• Coroner/medical examiner
  • Storage of bodies
  • Increased staffing
  • Indigent burials
  • Cemetery
  • Toxicology laboratory costs
• Foster care
  • Family and child services
  • Increased staffing
  • Increase in need for care
  • Child support
• Law enforcement (sheriff/police)/incarceration
  • Employee overtime
  • Narcan/Naloxone – Hydrochloride – injection, purchase and training
  • Establishment of task forces
  • Increase in investigation/crime increase
  • Specialized courts; juvenile, surrogate, drug, DUI, drug treatment, juvenile, probate
  • Public defender offices/prosecution
  • Jail/prison costs
  • Probation
  • Victim/family
  • Human trafficking
  • Adult detention
  • Neighborhood safety
  • Victim witness
• Health care and first responders
  • Public hospitals
  • Public health
  • Medicaid/Medicare
  • Substance abuse programs
  • Drug education programs
  • Drug prevention programs
  • Treatment centers/rehab
  • Mental health facilities
  • Veterans affairs
  • Fire
  • EMT/ambulance
  • Social services
• “Loss” in various forms
  • Loss of productivity
  • Travel and Tourism
  • Premature death
  • Decrease in labor participation
  • Crime increase
  • Quality of life
  • Increased sick time
  • Frequent firings
  • Price gauging
  • Workers compensation
  • Government assistance
  • Census
  • Public safety
  • Environmental damages

At Kelley Ferraro, LLC, we will work closely with our clients and experts in all aspects of the collection of information needed to prove damages and assist in the collection of documents and data. To learn more, call 216.575.0777 to schedule a free consultation with one of our attorneys. You may also contact us online.

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