Recently, two Ohio counties settled with opioid distributors AmerisourceBergen, Cardinal Health and McKesson for $215 million in cash just hours before going to trial. A fourth defendant, Teva, agreed to pay $20 million and provide $25 million worth of the opioid substitution therapy buprenorphine, according to the Los Angeles Times. Lawyers and doctors who are following the lawsuit said the settlements will fall well short of resolving the opioid epidemic.
Lewis Nelson, MD, who is chair of emergency medicine at Rutgers New Jersey Medical School and a former chair of FDA’s Drug Safety and Risk Management Advisory Committee, scoffed at the amount.
“There is no way there will ever be enough money from any settlement to cover the cost of containing and managing the crisis,” he told Healio Primary Care. “But it is a start, and there’s recognition of some culpability here, even though the companies deny any, and there’s also recognition that we need a lot more public health resources to resolve the problem.”
Next legal steps
Lawyers and doctors who are following the lawsuits against the opioid industry told Healio Primary Care the settlements will fall well short of resolving the opioid epidemic.
Some of the resources Nelson alluded to could potentially come from additional lawsuits in the works.
A trial involving hundreds of local, county and state governments that are suing opioid manufacturers is scheduled to occur within the next 6 months.
Jennifer D. Oliva
Although a $48 million settlement has been offered to some of the plaintiffs — most of them states represented by Republican attorneys general — there is infighting on how the money should be allocated, Jennifer D. Oliva, JD, an associate professor of law at the Seton Hall University School of Law in New Jersey, told Healio Primary Care. The remaining states, mostly represented by Democratic attorneys general, do not agree with the terms of the $48 million lawsuit, claiming that the owners of Purdue Pharma — the Sackler family, which recently agreed to pay Oklahoma $270 million for its role in the opioid epidemic rather than go to trial — should be offering more money.
Oliva warned that if the plaintiffs went to trial and won, “there could be appeals. With settlements, everyone signs the deal and the states, counties, cities and tribes receive abatement funds to mitigate their costs. With trials, there will be additional litigation costs and it could be years until the plaintiffs see a dollar to fight the crisis. It’s risky,” she said. Conversely, the defendants want to settle because “a 6- to 8-week trial is expensive, attracts a lot of [unwanted] publicity and public exposure and is also risky,” she continued. “The defendants would prefer to resolve all of the cases once and for all in a global deal.”
Though likely, a settlement may not be cause for victory, David L. Noll, JD, an associate professor of law at Rutgers Law School in New Jersey, told Healio Primary Care.
“The devil really is in the details in mass tort settlements, so a settlement could be a good or bad thing for local governments,” he said.
Noll posed several pertinent questions about the settlement, the answers to which would decide who really “won.”
“First, does the settlement put in place public health programs that immediately address the ongoing opioid crisis? Second, do the defendants pay an amount that reflects the damage their sales and marketing prescribing practices caused to affected communities?” he said.
“Third, how is settlement money distributed? Fourth, are the attorneys' fees for plaintiffs' lawyers reasonable? And how are they calculated?” Noll continued.
Oliva said there would likely be a settlement, but “it is unlikely to resolve the country’s complex, multi-faceted drug overdose and opioid use disorder crisis in the long-run.”
She explained why doctors should be in favor of a trial.
“The distributors and manufacturers have consistently insisted that the opioid crisis is not their fault, that it was the rogue physicians that caused the crisis,” she said. “The information that would be disclosed during a public trial might undermine the companies’ attempt to shift the blame to doctors.”
Stay tuned to Healio Primary Care for continuing coverage. – by Janel Miller
Disclosures: Noll reports previously working with the Sackler family. Oliva reports no relevant financial disclosures. Healio Primary Care was unable to determine Nelson’s relevant financial disclosures prior to publication.