Opioid litigation that has dominated the 24-hour news cycle over the past four years appears to be coming to a head. This month alone, there have been two rulings out of Oklahoma and California that has gone against plaintiffs. Over 40 states signed a settlement that will pay them over $30 billion to help them fund treatment and prevention programs to help thwart the opioid epidemic. However, about six states, including Washington, refused to settle. Washington AG Bob Ferguson turned down about $540 million in settlement funds because (1) he did not consider it enough and (2) his constituents wanted their day in court to prove drug makers’ negligence helped fuel the crisis.
Ailsa Chang of NPR interviewed Washington AG Bob Ferguson to understand what he expected to accomplish from the upcoming trial against opioid distributors McKesson (MCK), Cardinal Health (CAH) and AmerisourceBergen (ABC).
Ailsa Chang: This epidemic has cost countless lives in Washington State. According to the state’s department of health nearly 1,200 people died from an opioid overdose in last year alone … Tell me why it (settlement) felt inadequate to you?
Bob Ferguson: I did reject that settlement, which would have brought in several hundred million dollars for the state of Washington … Those payments would have spread out over 18 years … would have been about $30 million a year. Look you don’t have to be expert in the impact of the opioid epidemic and the harm caused by the defense to realize that just is not enough to remedy the situation, dollars for treatment and harms to our state … Combined with the fact that there’s actually no accountability for these companies, were key reasons why I rejected it …
Ailsa Chang: What do you think you can get from a full-blown trial at this point that that settlement offer could not give you?
Bob Ferguson: We do think we should be more money, but there is something else. That something else is the many conversations I’ve had with Washingtonians since we’ve filed this lawsuit, parents who have lost their child for example, to opioid addiction. Where they say, ‘Hey the money is important, but what I really want Bob is to be able to walk into a courtroom one day and see these individuals testify under oath about what they knew and when they knew it …’ There is something more than money here at stake and that word is frankly, ‘accountability …’
Ailsa Chang: This month a judge in California and the Oklahoma state supreme court both rejected this public nuisance argument … How confident are you that this legal strategy will be effective here? … What happens if you lose at trial? Is there a risk that people in Washington will get nothing after all is said and done?
Over the past few years the corporate has been practically certain that opioid manufacturers and distributors caused the opioid epidemic. The media estimate the payouts could rival the $246 billion tobacco settlement and potentially, bankrupt certain opioid manufacturers. Mallinckrodt went belly-up because it was not a going concern away. It had too much debt and it core product, acthar, was coming under attack by medicaid and medicare. Purdue Pharma and Insys went under because opioids represented the lion’s share of their revenue.
That said, Ailsa Chang is beginning to channel Trump And The GE, which has chronicled the opioid crisis since former president Trump threw down the gauntlet. Trump And The GE assumed the states would settle, prior to going to trial. After all, this appears to be a public policy issue, and not a legal one.
Shock Exchange: Then also there was news about the California trial with a few counties involving Teva (TEVA), AbbVie (ABBV), Endo (ENDP) … The judge recently gave a statement that he has seen a dearth of evidence to support the plaintiffs’ claims that a proliferation of opioid prescriptions or the opioid manufacturers caused inappropriate prescriptions to be written … We all know that doctors have been prescribing opioids for chronic pain, which they had not been previously … had been used for critically care cancer patients and also for people who had had surgery … that means that prescriptions spiraled upward. That caused more addiction and it may have led to the opioid epidemic in some respects. The judge said everybody knew they were prescribing for chronic pain and the trade-off may have been more addiction …
I think it may have been a shot across the bow … if these opioid manufacturers can get a victory in court … it could be a message to other jurisdictions that you can’t get a public nuisance claim in these examples. And Judge Polster also threw cold water on the idea – ‘You likely will not be able to get a public nuisance claim in court’ – he said that a couple of years ago. This is really a negotiation. It’s not a legal process … It’s a public policy issue. It’s not a legal issue … Other municipalities may come to the table and say, ‘We’ll willing to settle,’ which is what Louisiana did pre-emptively … This may be the line of demarcation for opioid litigation, in my opinion.
Torian Mitchell: To put it in the plainest terms … I find it an admonishment by the judge, that they’ve (plaintiffs) have built a case that lacks evidence. To me that’s … other than just calling you stupid, that’s kind of a nice way of saying it. Not only a high-profile case, but a case that impacts real people and real outcomes … You have people who really need access to those resources … those that are going through treatment, those are still seeking treatment and those that have yet to engage with some form of treatment because they are still dealing with the addiction phase.
The fact that Ailsa Chang would ponder whether the Washington AG would lose at trial or end up with nothing is a sea change from how the corporate media had been reported on the opioid crisis. Chang sounds like Trump And The GE, where we have questioned the plaintiffs’ ability to win a public nuisance claim for years. It is clear that Chang and NPR are huge fans of Trump And The GE and are trying to co-opt our message.
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