Alabama cities, counties and institutions have contributed to a mounting wave of lawsuits blaming drug makers and distributors for a national opioid epidemic. An association representing the distribution companies argues that its members simply aren’t to blame.
If and how that stance will be reflected in legal strategy remains to be seen.
Dozens of lawsuits filed across the nation have been consolidated for pretrial proceedings in the U.S. District Court for the Northern District of Ohio, in Cleveland before Judge Dan A. Polster. These include suits initially filed in other venues by the city of Birmingham, the Monroe County Healthcare Authority and Mobile-based Infirmary Health Hospitals, the cities of Gadsden and Fort Payne, and Tallapoosa and Etowah County.
Other suits have been filed more recently and have not yet been consolidated. One filed by the city of Mobile on Dec. 27 in U.S. District Court for the Southern District of Alabama has been assigned to Magistrate Judge William E. Cassidy.
The suits name an assortment of drug manufacturers and distributors, broadly alleging that they misled medical professionals, concealing the addictive potential of their products, and failed to tighten the supply when sales data should have indicated to them the medicines were being overprescribed and diverted for illicit use. The suits charge that the resulting epidemic of addiction saddled hospitals and governmental agencies with a variety of unreasonable expenses.
Citing a “narrow, distorted view of the prescription drug supply chain” in general and wholesalers’ role in particular, the Healthcare Distribution Alliance (HDA) has asserted that distributors share little to no blame for the epidemic and have in fact been eager to find solutions. Its members include companies named in the lawsuits, such as AmerisourceBergen, Cardinal Health and McKesson.
HDA officer John Parker said that distributors “understand the tragic impact” of the opioid epidemic. “We are deeply engaged in the issue and are taking our own steps to be part of the solution,” he said, “but we aren’t willing to be scapegoats.”
In a “fact check” laying out its position, the Alliance argues that distributors don’t manufacture, prescribe or dispense medicines; can’t make medical determinations regarding patient care; and operates in an environment that is robustly regulated by the DEA. It also says that distributors are “strongly committed to addressing the barriers and challenges that contributed to the opioid epidemic” and would welcome “a public-private partnership between distributors and the DEA.”
Recently, in remarks criticizing The Washington Post’s reporting on the issue, HDA President and CEO John M. Gray likewise disavowed responsibility. “(D)istributors respond to demand in the market for medicines — they don’t create it,” he said. “Expecting distributors to have unilaterally stemmed the flow of opioids — a flow that increased yearly with the explicit oversight and approval of the DEA — is a transparent attempt by former DEA officials to shift the blame for their own failed approach to regulation during the growth and peak of the epidemic.”
While clear enough on a public-relations front, it remains to be seen how it’ll translate into courtroom action as consolidated pretrial proceedings get under way before Senior District Judge Dan A. Posner in Cleveland. While the HDA position might seem to suggest that distributors will seek to be excluded from the lawsuits, or at least handled separately, an Alliance representative said the group couldn’t speak for members on their plans.
A spokesman for distributor AmerisourceBergen declined to comment on the company’s legal outlook. He provided a statement that downplayed distributors’ role in deciding who gets opioids while also saying that the companies did refuse service to suspicious customers and provide reports on drug shipments to the DEA.
The statement, in full:
“AmerisourceBergen and other wholesale drug distributors are responsible for getting FDA-approved drugs from pharmaceutical manufacturers to DEA-registered pharmacies, based on prescriptions written by licensed doctors and health care providers. Our role in doing so is quite widespread across different therapies, with the distribution of opioid-based products constituting less than two percent of our sales.
We are dedicated to doing our part as a distributor to mitigate the diversion of these drugs without interfering with clinical decisions made by doctors, who interact directly with patients and decide what treatments are most appropriate for their care. Beyond our reporting and immediate halting of tens of thousands of potentially suspicious orders, we refuse service to customers we deem as a diversion risk and provide daily reports to the DEA that detail the quantity, type, and the receiving pharmacy of every single order of these products that we distribute.
We are committed to collaborating with all stakeholders, including in Alabama, on ways to combat opioid abuse.”
Much about the structure and timetable of the case remains to be determined, and a conference is set for Jan. 9.
On Dec. 29, Polster issued an order approving requests by physician defendants, manufacturer defendants and distributor defendants to create separate steering committees. Distributors and manufacturers had filed a joint motion in late December saying that “significant difference in allegations and claims against the varying groups” of defendants justified the creation of “separate tracks.”
Similar organizational efforts have been under way to establish the leadership structure for plaintiffs.
In another order, Polster wrote that “The Court has received and is considering the parties’ thoughtful suggestions on the appointment of a special master or masters. After talking to counsel on January 9, 2018, I believe I will have a better sense of where this MDL is going and I will be in a better position to make a decision.”