Significant progress continues to be made in the opioid multidistrict litigation (MDL) consolidated before U.S. District Judge Dan Aaron Polster in Cleveland, Ohio. Judge Polster recognizes the extreme urgency of the opioid crisis and has set an aggressive schedule of settlement negotiations while simultaneously putting certain cases on litigation tracks.
The State of Alabama, the counties of Summit (Ohio), Cabell (West Virginia), Monroe, Michigan, and Broward (all Florida), and the City of Chicago were all selected as bellwether cases for motion to dismiss practice to determine the viability of threshold legal issues that may assist in the settlement negotiations and to prepare the test cases for trial in the event that a settlement does not occur. Judge Polster selected cases that represent a variety of jurisdictions, Plaintiffs, Defendants and issues. Summit and Cuyahoga counties and the City of Cleveland were selected to conduct discovery and prepare their cases for trial, which has tentatively been set for March 2019. The State of Alabama is gearing up in expectation that it will be appointed as a bellwether case in the second round of bellwether trials. Alabama is the only state currently litigating this case in the MDL.
Opioids in Alabama and the U.S.
Alabama has been particularly hard hit by the crisis. The state has one of the highest prescription rates for opioids in the nation, with 1.2 prescriptions per person, nearly twice the national average of 0.72 prescriptions per person. According to the National Institute on Drug abuse, there were 343 opioid-related overdose deaths in Alabama in 2016, and at least 282 deaths were attributed to opioid overdoses in Alabama the previous year.
On a national level, the effects of the opioid epidemic are startling. A study published in the journal JAMA Network Open suggests opioid abuse in the U.S. is now responsible for 20 percent of deaths among young adults – up from just 4 percent in 2001 – a far greater pace than any other age group. Comparatively, one in every 65 adults in the U.S. suffered deaths associated with opioids in 2016 — a 292 percent increase since 2001. Due to the continued deterioration of the addiction crisis nationwide, the researchers concluded the U.S. lost a total of 1,681,359 years of life in 2016 alone.
But loss of life isn’t the only toll the opioid crisis takes on communities. According to the Centers for Disease Control and Prevention (CDC), the opioid epidemic costs the U.S. about $78.5 billion a year in health care, lost productivity, addiction treatment, and criminal justice involvement.
To better assist local governments in the opioid MDL, Judge Polster also ordered the Drug Enforcement Administration (DEA) to release detailed data regarding opioid sales activity in these six critical states from its Automation of Reports and Consolidated Orders Systems (ARCOS) database.
The ARCOS database lists individual opioid transactions and tracks quantities of specific opioids from manufacturer to distributor to pharmacy. Local governments in the MDL requested records dating back to at least 1995, to provide a baseline for opioid sales activity. This request was granted by special master David Cohen, who concluded that this “baseline evidence” regarding opioid sales must be provided in order to contextualize the issue that allegedly broke laws and created the opioid epidemic. The timeline coincides with the launch of Purdue Pharma LP’s OxyContin, which was approved for marketing in the U.S. in 1995.
The ARCOS data is pivotal to local governments suing opioid manufacturers, distributors and pharmacies because it gives insight into the marketing and sales practices of drug makers accused of fueling the opioid crisis by overstating the benefits of the drugs while downplaying their highly addictive qualities, and will be extremely helpful in holding these companies accountable for their role in the destruction opioids have had on local governments across the nation.
Shortly after releasing the ARCOS data to the six potential bellwether states, Judge Polster agreed to release the data to all 50 states.
Tackling the opioid crisis
More than 700 cases are currently pending in the opioid MDL filed by cities, counties, states and even Indian tribes accusing manufacturers and distributors of the powerful painkillers, and pharmacies of inflating the effectiveness of the medications and downplaying their addictive properties, creating conditions ripe for abuse and misuse. As a result, the lawsuits claim, tens of thousands of citizens have died or required medical care, creating a crippling financial burden to communities across the country.
In 2017, President Trump declared the opioid epidemic a national public health emergency. Earlier this year, Attorney General Jeff Sessions announced a new Prescription Interdiction & Litigation (PIL) Task Force established by the U.S. Department of Justice to aggressively coordinate all available criminal and civil law enforcement tools to reverse “the tide of opioid overdoses in the United States.” The task force will focus on the activities of opioid manufacturers and distributors. Attorney General Sessions also assigned 12 assistant U.S. attorneys to spend three years focusing exclusively on investigating and prosecuting health care and fraud related to prescription opioids.
Because of the enormity of the opioid litigation, and Alabama’s personal involvement in the MDL, Beasley Allen Law Firm has put together an “Opioid Litigation Team,” which includes attorneys Rhon Jones, Ryan Kral, Rick Stratton, Parker Miller, Will Sutton, Jeff Price, Liz Eiland and Roger Smith. This team of lawyers represents the State of Alabama and numerous local governments and other entities in the MDL, as well as individual claims for victims.
U.S. District Court of Ohio