April 12, 2018

CT opioid lawsuits advancing in face of settlement effort

PHOTO | Steve Heap, Shutterstock.com
PHOTO | Steve Heap, Shutterstock.com

Nearly two dozen Connecticut cities and towns are scheduled to soon confront Purdue Phama and other opioid makers in court over what they say are the pharmaceuticals' deceptive practices.

Meanwhile, a federal judge in Ohio is trying to resolve through a massive settlement more than 400 federal lawsuits brought by cities, counties and Native American tribes against central figures in the national opioid tragedy.

But, at least for now, Connecticut's towns, including Waterbury, Bristol, East Hartford and Torrington, have chosen to sue Purdue and other opioid makers in state court. They have standing to do so because Purdue Pharma is based in Stamford.

Judy Scolnick, an attorney in the New York office of Scott + Scott, who represents Waterbury, New Haven, Bridgeport and New Britain, said the towns have until now rejected the massive settlement effort and plan to continue to pursue the case in state court because they think that's' "where the defendants' liability risk is the greatest."

Scolnick said the towns want the case tried by "a jury of the victims' peers" — jurors who have had a family member, friend or co-worker fall victim to the opioid epidemic.

"Probably all of them have been touched," Scolnick said of prospective jurors.

Connecticut had the 12th-highest number of opioid deaths in the country as of 2015, according to the U.S. Centers for Disease Control and Prevention.

The cases in Connecticut against the opioid makers have been joined, meaning they will be considered together, and will be heard in Hartford by Superior Court Judge Thomas Moukawsher.

The judge has laid out a quick schedule. The defendants must file their motions to dismiss the case by May 14. Defendants include Purdue, which makes OxiContin, and Allergan, Cephalon and Janssen Pharmaceuticals, which make oxycodone — which is similar to OxyContin but is not produced in a time-release form.

Another defendant is Endo Pharmaceutical, the maker of Opana ER, a long-acting opioid painkiller. Endo last year pulled it from the market after the FDA said the drug's benefit did not outweigh public health risks associated with opioid abuse.

Endo denies the allegations and intends to vigorously defend the case, the company said in a statement.

"Endo is dedicated to providing safe, quality products to patients in need, and we share the public concern regarding opioid abuse and misuse," the statement said. "We are committed to working collaboratively to develop and implement a comprehensive solution to the opioid crisis, which is a complex problem with several causes that are difficult to disentangle."

According to Mouskawsher's order, defendants must file their response by June 13. If the case goes forward, oral arguments will be heard on June 28.

Connecticut's cities are also suing major drug distributors, like McKesson and Cardinal Health, claiming they shipped alarming quantities without reporting to the authorities. Some cities also are suing several doctors considered "key opinion leaders" because they promoted in public forums, the use of opioids, saying they were safe.

New Haven, New Britain, Naugatuck, Southbury, Woodbury, Fairfield, Beacon Falls, Milford, Oxford, West Haven, North Haven, Thomaston, East Hartford, Southington, Newtown, Shelton and Tolland are also plaintiffs in the four opioid lawsuits in the state that have been consolidated before Moushkawsher.

Lawyers representing these towns say they expect additional Connecticut towns to join the lawsuits.

"By virtue of their deceptive and fraudulent marketing campaign, defendants have given rise to a drug epidemic the likes of which the Connecticut municipalities, the state of Connecticut, and the nation have never before seen, resulting in substantial economic harm to plaintiffs," the complaints say.

Purdue and other opioid makers say their products are safe when used as prescribed and they are proactively warning patients against the dangers of misuse. Distributors have said they share the concerns over opioid abuse but will defend themselves against the suits.

"We are deeply troubled by the prescription and illicit opioid abuse crisis, and we are dedicated to being part of the solution," Purdue said in a statement. "As a company grounded in science, we must balance patient access to FDA-approved medicines, while working collaboratively to solve this public health challenge."

The plaintiffs say the drug companies knew of the dangers of prescribing opioids for chronic pain, that they knew the effectiveness of their drugs as pain killers wane over time — leading to higher doses and increasing use — and that the drug companies spent millions on marketing campaigns aimed at persuading doctors that they could be safely prescribed for a long term.

"Opioids are basically heroin pills," Scolnick said.

The towns' complaints include claims of violations of the Connecticut Unfair Trade Practices Act, public nuisance, fraud, negligent misrepresentation, innocent misrepresentation and unjust enrichment.

The towns are seeking compensatory damages to reimburse them for all the money the spent providing health care and other aid to opioid users as well as punitive damages.

A settlement in the works?

Meanwhile, federal Judge Dan Aaron Polster of the Northern District of Ohio has taken an unusual legal approach to the opioid lawsuits.

Late last year, a judicial panel gathered all the prescription opioid cases filed in federal court across the country in a consolidation called a multidistrict litigation, or MLD, and assigned them to Polster.

Instead of going through the arduous and time- consuming process of discovery and trial, Polster informed the army of lawyers involved in these cases he intended to prepare for settlement discussions immediately.

"I don't think anyone in the country is interested in a whole lot of finger-pointing at this point, and I'm not either," Polster told attorneys from across the country who flooded his courtroom in downtown Cleveland in a January meeting. "People aren't interested in figuring out the answer to interesting legal questions like preemption and learned intermediary, or unraveling complicated conspiracy theories. So, my objective is to do something meaningful to abate this crisis and to do it in 2018."

Polster has scheduled a May 9 settlement conference and wants everyone involved in an opioid suit, including those suing in state courts, to participate. But it's not clear whether Connecticut towns will join the effort.

"The federal MDL is at this point distinct from the Connecticut action," said Sarah Burn, an attorney for the Simmons Hanly Conroy law firm that is representing Bridgeport and 17 other Connecticut towns in their opioid suit.

Connecticut Attorney General George Jepsen, however, said he'll be involved.

Jepsen is among 41 state attorneys general invited to the settlement conference by Polster. Some of the attorneys general have sued the pharmaceutical companies over their opioid marketing and distribution; others, like Jepsen, launched investigations into those companies.

Jepsen said when a group of state attorneys generals began their investigation 14 months ago, their main target was Purdue Pharma. When he was asked to become more involved, Jepsen moved to include other pharmaceutical companies in the probe, as well as major drug distributors.

Jepsen lauded Polster's attempts to reach a "global settlement," much like the tobacco settlement that ended a massive wave of litigation in the 1990s.

"We have come further in the past two-and-a-half months than in the previous years," he said. "We are still far from a solution, but we are closer."

Connecticut has received nearly $2 billion over the past 15 years as part of a legal settlement meant to compensate states for the toll of tobacco. But the nation's pharmaceuticals have a stronger defense than the tobacco companies in that their product is used for legitimate medical purposes.

Still, there is a cost for the drug makers in defending hundreds of lawsuits. And Polster has experience with MDLs, having mediated settlements in some 700 cases involving a medical contrast dye.

Jepsen wants Connecticut's cities and towns to be a part of any settlement.

"We don't see a global solution unless the cities and towns are part of a final settlement," Jepsen said.

It's likely most of the money offered in a settlement would go to states like Connecticut that have had to pay hundreds of millions of dollars in Medicaid claims as a result of the epidemic of opioid addiction.

Jepsen said he'd press for any windfall Connecticut would receive from an opioid settlement to go to treatment and prevention services, "before the money is put in the general fund."

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