By Scott Higham and Lenny Bernstein / The Washington Post
A new legal front is opening in the war against the nation’s opioid crisis as attorneys begin to pursue major corporations that distribute prescription painkillers. They are seeking billions of dollars in reimbursements for the devastation the drugs have caused in communities across the country.
Attorneys in West Virginia, which has the highest opioid overdose rate in the nation, filed lawsuits in federal court Thursday on behalf of two counties and targeting some of the nation’s largest drug distribution companies. A dozen attorneys general in hard-hit states are considering similar suits against many of the same companies.
The city of Everett on Jan. 19 filed a lawsuit against Purdue Pharma for its role in the distribution of OxyContin “to obviously suspicious physicians and pharmacies” and enabling the black market to disperse the addictive drug in the city. An NBC news broadcast on March 9 highlighted Everett’s lawsuit.
“The purpose of these lawsuits is to make the economic cost of willfully violating the law so significant that we force the wholesalers to abide by the law,” said Paul Farrell Jr., who filed the lawsuits in West Virginia and plans to file lawsuits on behalf of five other counties in the state next week.
The suits are among the first of their kind in the country. They accuse the companies of creating a hazard to public health and safety by shipping inordinate quantities of opioids into the state in violation of a West Virginia law. The law was originally designed to permit the demolition of run-down buildings that posed a public nuisance and threatened the safety of a community.
The lawsuits name McKesson Corp., Cardinal Health and AmerisourceBergen — which distribute 85 percent of the nation’s drugs. Also named are Walgreens, CVS and others.
“The unlawful conduct by the defendant wholesale distributors is purposeful and intentional,” the suit says.
John Parker, a spokesman for the Healthcare Distribution Alliance, a trade association that represents the drug distributors, said in a statement that “prescription drug abuse is a complex problem and each component of the supply chain shares the responsibility for controlling the availability of opioid pain medications.”
“This epidemic must be addressed through a multifaceted, collaborative approach that includes the doctors who write the prescriptions, the pharmacists who dispense the drugs, the distributors who deliver the medicines, the manufacturers who make and promote the products, and the federal and state regulators who license and regulate these entities and determine supply.”
A spokeswoman for AmerisourceBergen said in a statement that the company “has been and remains committed to the safe and appropriate delivery of controlled substances.”
The lawsuits come as counties and states grapple with the economic impact of a prescription-opioid epidemic that has resulted in nearly 180,000 overdose deaths since 2000 and led to tens of thousands more deaths from overdoses of heroin and fentanyl as the crisis has evolved.
The epidemic has taken a financial toll on hospital emergency rooms, jails and law enforcement agencies. It has also undermined the stability of families in the hardest-hit communities.
The death toll from overdoses of prescription painkillers has more than tripled in the past decade, according to the Centers for Disease Control and Prevention. Nearly 40 people die each day in the United States from overdoses of drugs, such as oxycodone and hydrocodone.
The West Virginia attorney general’s office recently settled lawsuits filed against opioid distributors for violating the state’s consumer protection laws. Cardinal Health agreed to pay $20 million and AmerisourceBergen $16 million. Both companies denied wrongdoing.
A dozen attorneys general in states stricken by the epidemic are considering filing lawsuits against the distribution companies, according to attorneys Serena Hallowell and Michael P. Canty, a former federal prosecutor who handled prescription diversion cases for the Justice Department. They said the attorneys general are planning to seek damages from the distributors for the economic impact the drugs have had on their states.
Under federal law, drug distribution companies are required to report suspicious orders of narcotics to the Drug Enforcement Administration, including orders of unusually large size, orders that deviate from a normal pattern and orders of unusual frequency. Companies that fail to report such orders can face fines, and their DEA registrations can be revoked.
The Washington Post reported in October that at least 13 of the companies knew or should have known that hundreds of millions of pills were ending up on the black market. But the companies ignored warnings and continued to send the drugs, sometimes after being alerted by the DEA or their own employees.
Several of the drug distribution companies and pharmacies have already paid civil fines to settle cases brought by the federal government alleging that they violated the nation’s drug laws. Those companies include McKesson, the fifth largest corporation in the United States, Cardinal Health, Walgreens and CVS. Some of the companies also had portions of their operations suspended.
“The epidemic still rages because the fines and suspensions imposed by the DEA do not change the conduct of the wholesale distribution industry,” the lawsuits filed in West Virginia say. “They pay fines as a cost of doing business in an industry which generates billions of dollars in annual revenue.”
Between 2007 and 2012, drug distribution companies shipped 780 million doses of opioids to West Virginia, and 1,728 overdose deaths occurred, according to an investigation by the Charleston Gazette-Mail.
Cabell County, in the heart of the state, was flooded with nearly 40 million tablets of painkillers in that time. With a population of 96,000, that’s more than 400 pills for every adult and child.
Farrell said the counties he represents want the distribution companies to pay for the treatment of addicts, programs to educate young people before they become addicted and law enforcement task forces to combat the continuing epidemic. He said damages could amount to “billions of dollars.”
Counties across the state have been ravaged by the crisis.
“The impact is beyond words,” said W. Kent Carper, president of the Kanawha County Commission in West Virginia, one of the counties that is suing the drug distributors.
He said the distributors sent 66 million doses of oxycodone and hydrocodone into Kanawha County, population 190,000. Addiction and deaths have cost his taxpayers millions of dollars in lost wages and productivity, along with increased spending for police, hospitals and jails, he said.
Distributors should be held accountable for the damage their drugs have done, Carper said.
“They have no plausible reason for doing what they’re doing,” Carper said. “They did it for one reason: greed. People should go to jail.”