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Opioids on trial

How Should Opioid Lawsuit Money Be Spent? Ohio Valley Has No Shortage Of Needs

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Photo: Rebecca Kiger

This article was originally published by Ohio Valley ReSource.

At a town hall event in Logan, Ohio, Kelly Taulbee walks through the steps of an encounter with someone experiencing an opioid overdose. She’s training a group to use NARCAN, the opioid reversal medication. She pulled out the small applicator and demonstrated how easy it is to spray the medication in someone’s nose.

As the director of nursing for the Hocking County health department, she understands the importance of this life-saving medicine.

“It is simple. It is safe. It is effective,” she said.

But she also knows that NARCAN is just one of many tools needed to respond to a crisis that has grown to affect nearly every aspect of life in this rural corner of southern Ohio.

Communities need more treatment and recovery programs, more help for affected children and families, and housing and workforce training for those in recovery. Public health workers, on top of addressing addiction, are also dealing with diseases related to needle drug use such as HIV, Hepatitis C and heart infections known as endocarditis.

All those take money.

Credit: Alexandra Kanik/Ohio Valley ReSource

Despite a presidential health emergency declaration and millions of dollars from Congressional spending bills like the Comprehensive Addiction and Recovery Act, there is still not enough to meet the needs in rural communities throughout the Ohio Valley, which has suffered the nation’s highest rates of addiction and overdose deaths.

Taulbee would like to see more go toward treatment, especially in Hocking County.

“We do not have a detox center,” she said. “We do not have a rehabilitation center. We have tons of agencies that are wanting to help people. But treatment, we need help with treatment.”

The first major federal case against opioid makers and distributors resulted in a $260 million settlement announced Monday in an Ohio courtroom. Master settlement talks have also intensified as the trial date approaches for more than 2,000 lawsuits that are part of the consolidated National Prescription Opiate Litigation.

State, county and local governments are waiting to see how much money they’ll receive, if any, from a settlement or judgment, and they are weighing in on how money from these cases should be used.

Rural Challenges

At a recent Ohio University symposium for solutions to the opioid epidemic, Betsy Anderson spoke about the importance of recovery housing.

She’s the executive director of Serenity Grove in Athens, Ohio. It houses five women as they begin their addiction recovery.

Betsy Anderson highlights the importance of recovery housing at a symposium for solutions in Athens, Ohio. Photo: Aaron Payne/Ohio Valley ReSource

Anderson believes any money from the litigation must go toward many different solutions, and recovery housing is an important one.

“Not just housing, but affordable, safe housing,” she said. “What’s affordable now is often in environments that are not so supportive and conducive to long-term recovery.”

Serenity Grove also helps these women get to appointments important to their recovery, like jobs or counseling services.

Transportation is a special challenge for rural areas that could use funding, as well.

“We have a grant-funded vehicle, but getting five different women to five different schedules every day is difficult,” Anderson said. “The women themselves are either not able financially to buy a car or don’t have driver’s licenses. Even if they were able to purchase a car, they encounter a lot of costs that can quickly take away from its ability to be an asset.”

Widespread Costs

Former Ohio Gov. John Kasich has teamed up with West Virginia University President Gordon Gee to present their plan for funding. Kasich and Gee formed Citizens for Effective Opioid Treatment, a nonprofit organization that hopes to guide money from a master settlement or judgment to hospitals.

Gee claims hospitals like those at West Virginia University have taken a hit from the opioid epidemic.

“We see this every day,” he said. “The cost to the institutions is very large, but the cost in terms of what is happening to families and young people is really the issue we’re concerned about.”

The most tangible cost hospitals face related to the opioid epidemic is uncompensated care.

The American Hospital Association said hospitals “of all types have provided more than $620 billion in uncompensated care to their patients” since 2000.

This figure is not directly related to the addiction crisis, but addiction specialists say many people experiencing substance use disorders don’t have health insurance.

Gee explained to West Virginia Public Broadcasting how these costs can add up, using Ruby Memorial Hospital in Morgantown, West Virginia, as an example.

“We have about 25 to 30 opioid patients in our hospital right now who are in need of heart valve replacements. And this is part of the result of the opioid crisis. Each one of those people will stay in our hospital for 50 to 60 days, a lot of it unreimbursed. So this is in the order of millions of dollars of uncompensated care,” he said.

Credit: Alexandra Kanik/Ohio Valley ReSource

Kasich claims hospitals are in a good position to do the most with the money from litigation. He’s not against local control of the funds, but he doesn’t want a repeat of what happened with money from the tobacco settlement, which largely went into states’ general funds.

“They were required to pay $246 billion. And what we found is that an awful lot of that money never really went to tobacco cessation,” he said.

Spending Control

Part of the conversation surrounding the court case is deciding who should control how money from a judgment or settlement is spent.

Ohio Attorney General Dave Yost attempted to get ahead of county and local litigation, requesting in August that their cases be put on hold until the states made their arguments.

He claimed that the states have sole right to pursue these claims on behalf of their citizens.

The Sixth Circuit Court of Appeals in Cincinnati rejected this argument, and criticized the timing of Yost’s action because there had already been settlements and the local cases were very close to trial.

Yost also raised the ire of local officials with reported draft legislation (which has not been introduced) that would give his office and outside attorneys trying the case each a five percent share of any settlement or judgment, then allow the state legislature to allocate the remaining money.

Yost recently clarified his position, saying that any money from the litigation should be spent on the local level.

Dr. Joseph Gay said there is strong science supporting medication-assisted treatment for addiction. Photo: Aaron Payne/Ohio Valley ReSource

Dr. Joe Gay said he can understand the desire for state control of the funds. But as the former longtime executive director of Health Recovery Services in southeast Ohio, he also argues that this money must make it to these communities.

“Many of the impacts have been statewide, so (state control) makes sense, but I think there should be room for local communities to have a say,” he said. “The impacts of opiates have been widespread, and so there are a number of systems that have been impacted and should be reimbursed – child welfare, law enforcement and so forth.”

Above everything, Gay hopes whoever controls the money uses it to supplement existing funding.

“I would like to see at least some of the money go to treatment and that it not simply replace funding that now exists, but that it increases the amount of money available.”

Complex Case

A judicial panel ruled that the roughly 2,000 cases against opioid companies would be consolidated into the National Prescription Opiate Litigation and assigned to Federal Judge Dan Polster in Cleveland. 

The first such case brought by Cuyahoga and Summit Counties in Ohio was against several companies the plaintiffs claimed created a public nuisance by fueling the opioid epidemic.

In a separate case, a court in Oklahoma found Johnson & Johnson liable under the state’s public nuisance laws for more than half a billion dollars.

University of Kentucky Law Professor Richard Ausness specializes in studying product liability litigation. He said Ohio’s public nuisance law is different and viewed differently in court, but Johnson & Johnson still settled with the two Ohio Counties for $20 million.

Oxycontin maker Purdue Pharma was initially named as a defendant in the case, but all cases were delayed for six months by Judge Polster after the company filed for bankruptcy.

Ausness believes the state attorneys general and lawyers representing the county and local governments, as well as the opioid manufacturers, distributors and pharmacies likely want to reach a master settlement. But it could be challenging deciding who pays what.

University of Kentucky law professor Richard Ausness studies product liability cases. Photo: Aaron Payne/Ohio Valley ReSource

Ausness sees a strong parallel between opioid lawsuits and tobacco litigation. “You can do it on the basis of culpability,” Ausness said. “Then you gotta decide, is promoting opioids more culpable than not watching the store on the distribution end of it?”

The settlement announced Monday buys more time to discuss a master settlement before the next scheduled federal trial.

Whether money comes from a settlement or the outcome of a trial, researchers believe the money awarded from these cases won’t be enough to offset the damage done by the opioid epidemic.

But for rural areas across the Ohio Valley where the crisis hit hardest, they’ll take anything they could get.

West Virginia Public Broadcasting and Ohio Public Radio contributed to this story.

Opioids on trial

Appalachian States Join Lawsuit Against Opioid Manufacturer Purdue

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Five more state attorney generals have announced they have filed suit against the manufacturer of the highly addictive opioid OxyContin and its former chief executive.

West Virginia’s suit, announced Thursday by state Attorney General Patrick Morrisey, alleges that the Purdue Pharma used unlawful marketing tactics that fueled a scourge of opioid addiction and related deaths.

Iowa, Kansas, Maryland and Wisconsin also individually filed suit against the company and former president Dr. Richard Sackler — a medical doctor, former president of Purdue and current board member of the company.

The new filings bring the total number of states to 45 that are currently suing Purdue. More than 2,000 local and tribal governments across the country are also doing the same, according to the Associated Press.

Morrisey says Purdue trained new marketing employees with the advertising motto, “We sell hope in a bottle.”

The complaint brought on behalf of West Virginia was filed in Boone County Circuit Court.

It says Purdue violated the state’s Consumer Credit and Protection Act by engaging in a “series of misleading safety, comparative and benefit claims about its opioid products and unfairly targeting vulnerable populations such as the elderly.”

“Enough is enough,” Morrisey said at a Thursday news conference announcing the West Virginia filing. “The opioid epidemic knows no boundaries but our states will not go down quietly.”

“As we all know, the opiate epidemic is not limited by wealth, gender, race or political affiliation. It’s a national problem — and one that requires broad cooperation across the country to conquer,” he added.

Officials from Purdue denied the allegations brought forth in the suits announced Thursday.

“These complaints are part of a continuing effort to try these cases in the court of public opinion rather than the justice system,” the company said in a statement. “The states cannot link the conduct alleged to the harm described, and so they have invented stunningly overbroad legal theories, which if adopted by courts, will undermine the bedrock legal principle of causation.  

Thursday’s lawsuit isn’t West Virginia’s first against Purdue Pharma.

Prior litigation, which focused on an earlier formula of OxyContin, was filed in 2001 and resulted in a $10 million settlement in 2004 under then-Attorney General Darrell McGraw.

Morrisey, who has been criticized for his past lobbying on the federal level on behalf of pharmaceutical companies, also recently announced a $37 million settlement with drug distributor McKesson.

U.S. Sen. Joe Manchin, a Democrat who defended his seat against Morrisey in the 2018 midterm election, criticized the McKesson settlement in a statement, calling it a “sweetheart deal” for the drug distributor.

This article was originally published by West Virginia Public Broadcasting.

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Opioids on trial

Opioids On Trial: Can Lawsuits Help Fix The Addiction Crisis?

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When health care and law enforcement officials met recently at a health policy forum in Lexington, Kentucky, to share ideas about the opioid crisis, Kentucky Attorney General Andy Beshear listed some groups that have benefited from money won in a 2015 settlement with Purdue Pharma, the maker of OxyContin.

“We had Freedom House in Louisville and Independence House in Corbin. We had the Chrysalis House in here in Lexington. Hope in the Mountains, that was going to have to shut down, in Prestonsburg,” he said.

Beshear doubled down on a commitment to sue other opioid manufacturers and distributors. He claims they owe the people affected by the addiction crisis.

“I’m not looking for punishment, I’m looking for responsibility,” he said. “And if those companies won’t take responsibility, then I’m going to see them in court.”

Courtesy WFPL. Kentucky Attorney General Andy Beshear.

Beshear joins a trend of state, county and municipal government officials across the country considering or filing myriad lawsuits in the past year against opioid manufacturers, distributors, pharmacies and doctors they say should take partial responsibility for the addiction crisis.

The approximately 60 plaintiffs in the Ohio Valley range from the state of Ohio, population 11.6 million, to the town of Kermit, West Virginia, population 371.

Alexandra Kanik | Ohio Valley ReSource

The defendants range from large opioid wholesale distributors such as Cardinal Health Inc., AmerisourceBergen Corp., and McKesson Corp., to small-town pharmacies such as Larry’s Drive-In Pharmacy in Madison, West Virginia.

The officials bringing these suits say the money earned in court would be used to cover what governments have spent to keep up with the damage done by the proliferation of opioid pain pills, and to improve treatment options for those who became addicted. But there are questions about using the courts as a fix for the addiction crisis. Some experts warn that the lawsuits might not succeed and even if they do, they might not bring a remedy in time.

The Strategy

Professor Richard Ausness researches product liability litigation at the University of Kentucky College of Law. He says the plaintiffs face a challenge in proving that the companies created a “public nuisance,” as many of the lawsuits allege.

“Historically, it has been concerned with activities on land,” he said. “A court would have to be willing to expand the traditional boundaries of public nuisance law.”

Another major hurdle will be to prove the companies bear direct responsibility. In similar cases the defense has argued that there are too many steps between selling or distributing a legal substance and the damages of the crisis.

“They clearly have a responsibility to the people they sold the drugs to. But this is a few steps removed from that,” Ausness said.

Law professor Richard Ausness sees a strong parallel between opioid lawsuits and tobacco litigation.

For example, as part of a lawsuit brought by the city of Huntington, West Virginia, Cardinal Health, a wholesale distributor of opioids, submitted a list of 2,000 organizations the company says could also be liable. This list was controversial because it included Lily’s Place, a treatment center for babies born dependent on drugs.

Ausness said he thinks this argument positions the defense for a chance at success, but it’s not a guarantee.

The plaintiffs, however, may not be looking for a successful ruling to achieve their goals.

“I’m not sure they expect to win or want to win,” Ausness said. “I think what they want to do is settle.”

The cost of litigation is expensive. And the theory is that if drug companies are hit with enough lawsuits, settlement will be a better financial decision than proceeding in court.

Settlements also allow defendants to seal potentially damaging information.

“That’s often the quid pro quo,” Ausness said. “They don’t want stuff getting out that could be used against them.”

A deposition of Purdue Pharma board member and former president Richard Sackler detailing the company’s marketing of OxyContin was put under seal in the Pike County Circuit Court as part of Kentucky’s settlement with the company.

This is believed to be the only time Sackler has spoken on record on the matter, according to STAT, which reports on the biomedical business world. The news organization is battling Purdue in court in an effort to unseal the deposition and other related records.

Following Tobacco Road?

Ausness compares the recent wave of opioid lawsuits to the tobacco industry’s landmark settlement. Industry leaders agreed to pay $206 billion in 1998 after nearly every state sued to recover Medicaid dollars spent on tobacco-related disease.

“The tobacco companies eventually threw in the towel and finally said, ‘We’re getting killed here a little at a time,’” Ausness said.

Part of the Tobacco Master Settlement Agreement prohibited future litigation against the industry.

Alexandra Kanik | Ohio Valley ReSource

Ausness said pharmaceutical companies could reach a point where they will opt for that. But he said there are a few key differences with the opioid lawsuits.

Opioids are regulated by the U.S. Food and Drug Administration while tobacco was not. This supports the defense in that they were selling and distributing a legal substance. And Ausenss said there is not yet any “smoking gun” evidence as there was in the tobacco lawsuits.

“They got together and conspired through their trade associations to lie about the risk of addiction and the nicotine content. And they got caught red-handed,” Ausness said.

And if lawsuits succeed, there may not be enough money to go around. There could potentially be thousands of plaintiffs in the opioid litigation as more county and municipal governments file suit.

“I think what we may end up with is something akin to an Oklahoma Land Rush,” Ausness said. “Everybody starts piling on and the ones who manage to get judgments early in the process may end up being compensated while the other ones end up not being compensated if the companies go under.”

A Timely Remedy?

The comparison to the tobacco lawsuits raises another thorny question: Would the money from opioid lawsuits really help those in need?

While smoking rates have dropped since the ’90s, critics of the tobacco settlement say much of the money promised to smoking prevention and education programs went instead into the states’ general budgets.

So far the opioid suits show mixed results in the region.

The Chrysalis House in Lexington is using some of the $24 million settlement from the 2015 agreement with Purdue Pharma to treat the alarming number of babies born drug-dependent.

“[The money is] providing necessary treatment and wrap-around services to the women and children that we serve,” Executive Director Lisa Minton said.

The $350,000 was awarded to Kentucky’s oldest and largest residential recovery program for women out of an $8 million pool through a grant process.

Minton said Chrysalis House will dedicate its share of the funds to hiring additional peer support staff, educational parenting programs and family services to the new mothers who come to one of their three facilities with their babies.

| Ohio Valley ReSource
Oxycontin pills prepared for snorting.

“Funding is always precarious,” Minton said. And grants like these help take some of the pressure off finding enough funding to keep up with the increase in demand for the services.

However, Kentucky’s Office of Drug Control Policy Executive Director Van Ingram cautions that even big money settlements take time to show effects on the ground.

The state’s suit against Purdue, for example, was filed in 2007, a settlement came in 2015, and organizations are just now receiving the money.

“It’ll be a decade before anything results out of these lawsuits, in my opinion,” Ingram said. “So, I don’t think it’s going to have any immediate impact.”

One to Watch

Professor Ausness agrees that these types of cases take time. He points to Chicago’s lawsuit filed against five major opioid manufacturers several years ago.

“It’s still in the pretrial phase after all the back and forth,” he said.

Out of all the similar cases filed across the country, Chicago’s is the furthest along and could have major implications for lawsuits filed in the Ohio Valley.

This means it’s still far too early to tell how the litigation will shake out, and even harder to tell if the results will have an impact in time to keep pace with the opioid crisis.

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