Billions from landmark opioids case? It’d be just a start in dealing with crisis

drugbottles-300x200Tens of billions of dollars. Those sound like hefty sums. But will it ever be enough? Will, say, $50 billion offer justice and appropriate recompense to a nation wracked by an opioid and overdose crisis?

These figures aren’t pulled from thin air. They’re part of the reported settlement under negotiations to resolve more than 2,300 lawsuits, all bundled up now and under the sway of a federal judge in Ohio. He will launch a landmark opioids’ trial this week, starting with claims by two Ohio counties, unless Big Pharma firms remaining as defendants and the plaintiffs — including states, counties, cities, and Indian tribes — can strike a deal and settle.

The claimants, of course, themselves represent huge and diverse interests: their millions of individual constituents. And they disagree on how much money is fair, how it should be divided, and more. The drug makers and distributors, having seen some of their peers bail already for significant sums, assert they have reached their negotiating ceiling, somewhere around that magic $50 billion.

That dough might stretch over 18 years this way, the New York Times reported as the talks stumbled: “It would include $18 billion in cash and $3 billion in delivery services from the distributors, $4 billion from Johnson & Johnson, and $23 billion worth of generic medicine [to treat opioid overdoses and addiction] from Teva.”

The newspaper earlier had reported more on the proposal:

“According to people familiar with the talks, the combined value of the deal breaks down as follows: $20 billion to $25 billion in cash to be divided among the states and localities to help pay for health care, law enforcement and other costs associated with the epidemic; and another $25 billion to $30 billion in addiction-treatment drugs, supplies and delivery services. Many details are still being debated, including the timetable for when the money would be paid, people familiar with the negotiations said. Some state and local governments wanted more details about how the companies calculated the total dollar figures on services and addiction-treatment drugs.”

Settlements in cases as sprawling, complex, and uncertain as this one can be inherently unsatisfying. But with the opioid and overdose crisis having claimed hundreds of thousands of lives and wrecked millions more, the second-guessing about this matter will go on for a long time, whether settled or pursued in a trial in the civil justice system.

Indeed, even as the 12 jurors have been sworn and seated for the federal trial’s start, the Society of Actuaries reported that its research estimates the crisis cost the U.S. economy more than $600 billion just in a four-year span ending in 2018, with more than two-thirds of that staggering burden falling on individuals and the private sector. The findings also included this point of emphasis:

“This estimate includes costs associated with additional health care services for those impacted by opioid use disorder (OUD), premature mortality, criminal justice activities, child and family assistance programs, education programs and lost productivity. Importantly, this estimate does not include impacts for which there is a lack of adequate data, yet that are still meaningful and may be significant, as described throughout this report. For example, a few such impacts include reductions in household (non-paid) productivity, reductions in productive output while at work (presenteeism), and reductions in quality of life for those impacted directly or indirectly by OUD.”

However the civil justice system does its best to deal with the opioid and overdose crisis, will America take the moment and force the big reckoning it may need to — not just with powerful and addictive prescription pain killers but with Big Pharma and its relentless pursuit of profits?

Sure, states and local governments — including police, fire, and emergency medical service agencies — would get some reimbursement through lawsuits for costly care offered to citizens across the country due to drug nightmares caused when Big Pharma inundated communities with millions of pills and dissembled about their products’ benefits and harms.

Sure, the courts may force Big Pharma to pay up for some of what it has wrought. But here’s some what already has emerged from the Ohio wrangling: Purdue Pharmaceutical, maker of OxyContin, one of the most reviled opioids, may cough up in the days ahead anywhere from $10 billion to $12 billion in a settlement. But the firm made more than $13 billion already on its one drug, and the firm’s controlling family has spent lavish sums from Purdue profits and may be stashing yet more of it. Johnson and Johnson may have gotten dinged already for $20 million in Ohio and $520 million on Oklahoma as what it has described as its minor role in the opioid crisis. The firm has an annual income of $41 billion.

Optimists point to the Ohio litigation as a potential precedent-setter and legal game changer, akin to what occurred with a similar, still criticized global settlement with Big Tobacco. Safety advocates like Ralph Nader wrung significant change out of the auto industry through the courts.

But will Congress and we the public finally take on and take down Big Pharma in anywhere near a comparable, follow-on, and sustained fashion? The outcry over skyrocketing prescription drug prices, though it has produced at least one noteworthy House action, seems to be getting squashed in partisan strife on Capitol Hill. And, in the meantime, the news about Big Pharma outrages never misses a beat:

  • The Los Angeles Times just reported how Big Pharma companies have plunged to new lows in their relentless pursuit of the almighty buck: They’ve promoted sketchy research to sway politicians to let them shove their way into government morgues. There — instead of their stated goal of promoting organ donation — the companies have taken a grisly harvest: skin, bones, fat, ligaments and other tissues from the dead. The firms need huge amounts of these materials, so they can convert them into tiny amounts of costly injectables used in cosmetic surgeries. What’s the problem? In their haste to grab for highly profitable human remains, company workers have scuttled criminal cases, destroying forensic evidence, yes, in what might be homicide cases. They also may prevent key pathology work that could help medical science, including informing families on causes of loved ones’ deaths. By the way, the scavengers haven’t done a whit to increase bona fide donation of desperately needed organs like hearts, kidneys, and lungs.
  • ProPublica has revisited its investigation of how Big Pharma and medical device makers insinuate themselves into doctors’ lives and pocketbooks, paying significant sums for promotional talks and consulting work. As the Pulitzer Prize-winning investigative site reported: “Six years later — despite often damning scrutiny from prosecutors and academics — … high earnings [from these practices] have become commonplace. More than 2,500 physicians have received at least half a million dollars apiece from drug makers and medical device companies in the past five years alone, a new ProPublica analysis of payment data shows. And that doesn’t include money for research or royalties from inventions. More than 700 of those doctors received at least $1 million.” ProPublica found that specific medications and firms lard on the doctor payments for drugs that also keep up their nose-bleed prices. The site doesn’t hammer home another key point: In the opioid and overdose crisis, prescription drug promotion — including with inaccurate information and exaggerated claims, as well as with not only speaker fees but also tawdry practices like the provision of lap dances — played a key role in Big Pharma getting doctors to write opioid prescriptions as if they were doling out candy on Halloween.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be wreaked on them and their loved ones by dangerous drugs, especially addictive and too often lethal opioids. They also have opened the path for abuse of powerful and easily made synthetic painkillers like fentanyl. They have sparked abuse of illicit drugs, including heroin, cocaine, and methamphetamines. A key part of the Ohio litigation — whether it settles or advances to the end of a trial — will include disclosure of information that parties have amassed in their long and deep digging into Big Pharma and its practices. This is invaluable material that the courts should not keep from the public, regulators, and lawmakers. It may provide important leads and guides to the formidable work we all still must do to deal not only with the national tragedy of the opioid and overdose crisis but also the Big Pharma companies and individuals responsible for it — and not just in the civil justice system.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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