Opioid court cases offer hard evidence: Path to justice can be rocky

oksct-300x211Patients who say they were injured by wealthy corporations must possess great fortitude as they seek justice in the civil system, as has been reaffirmed by the courts in California and Oklahoma that rejected   separate cases involving the harms of prescription painkillers.

All the parties in the two matters agreed that Big Pharma’s opioid drugs have killed a half million Americans over a decade, addicted and debilitated vast numbers of patients, and laid waste to communities across the country.

But in strict legal terms, a trial judge in Orange County, Calif., ruled that pharmaceutical giants would prevail in a lawsuit filed against them by aggrieved California counties. They claimed that, with opioids, “drug manufacturers misled both doctors and patients by downplaying the risks of addiction, overdose, death, and other health complications while overstating the benefits for long-term health conditions,” the Associated Press reported.

Instead, the judge said the evidence presented in a long civil case showed that the overdose deaths, addiction, and other harms caused by opioids flowed as negative consequences from “medically appropriate” prescribing of prescription drugs.

In Oklahoma, the Sooners’ highest court threw out a $465-million trial case win by the state and others against Johnson & Johnson for what plaintiffs asserted were drug makers’ misleading manufacture, marketing, and sales of potent painkillers.

The plaintiffs prevailed in the lower court by arguing that drug makers violated Oklahoma’s “public nuisance” laws and could be held accountable under them for the wreckage caused by the opioid abuse and drug overdose crisis, which U.S. officials say only has worsened during the coronavirus pandemic.

The Oklahoma and California cases were considered legal bellwethers, as they both proceeded to trial even as the federal judiciary consolidated thousands of lawsuits over opioids against Big Pharma, asking a U.S. judge in Cleveland to see if he could steer the giant cases into a “global” settlement, akin to what courts had struck decades ago with Big Tobacco.

The Oklahoma trial triumph, short-lived as it may have been, appeared to provide plaintiffs with a legal avenue to seek justice against Big Pharma by extending public nuisance laws, determined state by state, to the carnage caused by wealthy drug makers with opioids. Oklahoma’s top jurists, 5-1, rejected the strategy as it involved their state’s laws, and it did not sway the California trial judge, either, raising questions about this approach adopted in cases nationwide.

The California counties vowed to appeal the trial court decision, saying Big Pharma must be held accountable for opioids’ huge harms, which now include, officials say, the unleashing of illicit drugs as well as synthetic painkillers like fentanyl, which are easily made, widely circulating, and lethal in small doses.

A West Virginia federal trial is under way, launched roughly in the same, relatively early, legal time frame as the Oklahoma and California cases. Drug makers have settled opioids’ cases around the country. The negotiations continue in Cleveland, though efforts there have been scrambled by a legal gambit successfully used by the plutocratic Sackler family and the opioid-making drug company they controlled, Purdue Pharmaceutical.

The Sacklers hand-picked the federal bankruptcy judge and venue, pushing their company — but not family members — into bankruptcy. That move has resulted in a prospective settlement, approved by the judge, that dissolves Purdue, and theoretically provides billions of dollars to thousands of states, counties, local governments, Indian tribes, and individual claimant. The Sacklers, though, have declined to accept any responsibility or to issue any apology for the calamity caused by their falsehood-filled marketing, sales, and showering the country with the powerful painkiller OxyContin. The family also keeps billions of dollars in profits reaped from Purdue.

Discussions continue as to whether some plaintiffs will appeal the bankruptcy court ruling, which the judge in the case himself expressed disappointment in.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damages that can be inflicted on them by dangerous drugs, especially prescription painkillers. The opioids crisis, which took a long time for Big Pharma, doctors, nurses, hospitals, insurers, and other in health care to foster, may be another catastrophe in which corporate interests try to malign plaintiffs and trial lawyers (like me). They may try to conjure wrongful stereotypes about greedy attempts to benefit from the misfortune of those slammed by opioids.

But who else besides brave plaintiffs — injured individuals and their families, as well as representatives of taxpayers and communities savaged by the opioids’ crisis — could bear the too-often intimidating, difficult, and sometimes time-consuming process of going to court against deep-pocketed Big Pharma and turning off a supply of deadly drugs? If plaintiffs have not already suffered opioids’ harms — tens of millions of pills showered without explanation on towns and cities, often with populations of just hundreds or a few thousands — it can be tough as an officer of the court to explain how legal appeals can stymie patients’ pursuit of justice for prolonged periods.

It also is difficult to know that the nation’s situation with prescription and illicit drug abuse did not improve, but festered and exploded during the lonely, isolated months of the pandemic.

The Biden Administration has pledged to act with urgency to try to quell the crisis, which, among other things, appears to involve drug enforcement officials acting at cross-purposes with pharmacists seeking  to dispense an important medication used to prevent overdose deaths.

With the country approaching 100,000 fatalities this year alone due to the overdose and opioid abuse crisis — which also includes the menace of street drugs tainted in increasing and scary fashion with tiny but powerful and lethal doses of fentanyl — we must do all we can to deal with a major public health nightmare.

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