Doses of the opioid oxycodone-acetaminophen spill from a pill bottle. The federal judge hearing a lawsuit involving scores of state and local governments against the makers and distributors of opioid painkillers has asked the sides to begin settlement talks. (Patrick Sison/Associated Press file photo)

Doses of the opioid oxycodone-acetaminophen spill from a pill bottle. The federal judge hearing a lawsuit involving scores of state and local governments against the makers and distributors of opioid painkillers has asked the sides to begin settlement talks. (Patrick Sison/Associated Press file photo)

Editorial: An opioid settlement presents some concerns

Settling a suit against the opioid industry demands a significant award to those who have suffered.

By The Herald Editorial Board

A federal judge in Cleveland, Ohio, who is presiding over the lawsuit by some 200 cities, counties and states against the makers and distributors of prescription opioids — including the city of Everett’s suit against OxyContin maker Purdue Pharma — is asking all sides to broker a settlement and avoid a long and costly trial.

The city of Everett, the state of Washington and scores of others have alleged that the makers and distributors of opioid prescriptions promoted opioids to medical professionals as a safe and effective painkiller with a low risk for addiction and then too often turned a blind eye toward pill mills and doctors who were prescribing opioids at indefensible rates in order to rake in sales and generate profits.

More than just determining the size of a payout, Judge Dan Polster, serving on the bench since 1998, said he’s seeking the settlement to rein in the nation’s opioid epidemic and reduce the number of prescription opioids that are being misused and are creating and feeding addictions.

Such a settlement could go a long way toward beginning to reverse the opioid crisis, especially at a time when the Trump administration has declared the crisis a “national emergency” but has identified little in the way of resources that could help communities respond to the emergency.

One problem with a settlement: It would have to be massive to produce any effective outcome.

A Harvard Medical School health economist, Anupam Jena, estimates it would take $250 billion annually to make a meaningful dent in the crisis, providing support for treatment, support of law enforcement and compensation to victim’s families, Bloomberg reported last week.

Even a more modest estimate by Matrix Advisors, a Washington, D.C.-based economic policy consulting firm, put the annual national cost of the opioid epidemic at $55 billion. In Washington state, which had the third-highest opioid abuse rate among states in 2010-11, Matrix estimated the annual costs at $977 million, or $138 for every man, woman and child in the state.

Compare those figures against the 1998 settlement in the lawsuit between the attorneys general of 46 states and the four largest U.S. tobacco companies. Big Tobacco agreed to pay a minimum of $206 billion over the first 25 years of the settlement. That 25-year amount, a record by any standard, wouldn’t cover the first four years of costs for the opioid crisis.

The tobacco settlement does offer some guidance on how to structure any payout. While a significant portion of funds were intended for cessation and prevention programs and enforcement of state laws on tobacco use, too little of that amount now goes to those programs in Washington state. Of the $563 million that the state will receive in 2018 from the settlement and its $3.02-a-pack tax on cigarettes, it has budgeted only $1.4 million for youth prevention and cessation programs.

Judge Polster should give some attention to how any settlement funds are allocated, assuring that — after the attorneys get their cut — most goes to support treatment and prevention programs and compensation to victims and the cities and counties that have borne extreme costs in fighting the consequences of the opioid crisis.

As much good as such an agreement among the opioid industry and plaintiffs could do, such settlements typically involve a condition that can leave nagging questions unanswered. Purdue Pharma and others, including fellow makers Johnson & Johnson, Endo International and distributors McKesson Corp. and Cardinal Health, in agreeing to a settlement are likely to require they be allowed to admit no wrong-doing in the epidemic.

The judge needs to painstakingly weigh such a statement of no-fault against the good that an agreement could provide.

Washington state Attorney General Bob Ferguson, who filed suit on behalf of the state in September, last month was successful in unsealing court documents that go toward showing Purdue’s complicity in the crisis. Among the information in court documents that involved Everett doctors:

Purdue was aware as early as 2008 that an Everett doctor had written more than 1,000 OxyContin prescriptions in a six-month period, but did not report the doctor to the federal Drug Enforcement Agency until 2011. The doctor, Delbert Whetstone, pleaded guilty to unlawful distribution of controlled substances in 2012.

Purdue increased its sales contacts with another Everett doctor, who between 2007 and 2016 wrote more than 10,000 prescriptions for opioids, 26 times more than the average among Everett prescribers. Further, Purdue recruited the doctor, Donald Dillinger, to encourage his peers to prescribe more opioids. Dillinger was disciplined by the state Medical Quality Assurance Commission in 2017.

Everett will not be shown to be an isolated case. What happened here happened across the country.

For Purdue and the others to begin to atone for the harm suffered throughout the nation and right here in Everett, a settlement that allows the makers and distributors of prescription opioids to avoid admitting their part in this crisis will have to come with a very high price tag.

Correction: In an earlier version of this editorial, Purdue Pharma’s name was spelled incorrectly.

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