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Local governments line up to file suit against Big Pharma. Will El Paso County join in? 

Who’s to blame for the opioid crisis?

click to enlarge Counties say Big Pharma pushed pills, despite known risks. - LIGHTSPRING / SHUTTERSTOCK.COM
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  • Counties say Big Pharma pushed pills, despite known risks.
As the opioid crisis sweeps the country, killing more than 42,000 people in 2016 alone, cities and counties from Massachusetts to Montana have filed lawsuits against Big Pharma, alleging drug makers and distributors bear responsibility for their “false and misleading statements” about the risks and benefits of painkillers.

As one lawsuit, filed by Jefferson County, Ohio, put it, “This case is about one thing: corporate greed” that put the companies’ profits above the health and well-being of citizens.

Huerfano County, whose county seat is Walsenburg, was the first in Colorado to join the growing number of plaintiffs, which include at least 300 cities, counties, states, Native American tribes and labor unions, in demanding billions of dollars in damages as a result of pharmaceutical companies’ widespread promotion of opioids.

Now, El Paso County could hop on board to try to recover money spent on law enforcement, public health and social programs needed to combat the opioid crisis.

“The county is interested in evaluating the impact, and we will be seeking direction from our board of county commissioners on March 22,” First Assistant County Attorney Diana May says. The U.S. Department of Health and Human Services reports that 42,249 people died from opioid overdoses in 2016. During that year, about 60 died in El Paso County, according to the El Paso County Coroner’s Office.

But Deputy Coroner Leon Kelly says that while opioid deaths have almost doubled here in the past six years, equally alarming is the growing percentage of those deaths that resulted from overdoses of heroin, which grew from 17 percent of all opioid deaths in the county in 2012 to 58 percent in 2017. People addicted to legal prescription painkillers often turn to heroin when they’re no longer able to obtain opioids legally.

Aside from the loss of life, Kelly says the heroin trade brings additional woes such as crime and all of its corollary problems: disease transferred via intravenous drug use, including HIV, Hepatitis C and B, and the intangible impact to families caused by addiction, such as lost jobs, homelessness and hunger. So, as Kelly notes, users are at risk of far more than just overdoses.

Kelly says he’s unaware of anyone who tracks costs associated with the opioid crisis for law enforcement, public health and social services. “It touches so many agencies,” he says. “It’s hard to define. The impacts do run so deep.”

But May says her office is trying to quantify those financial impacts in preparation for a closed-door session with the El Paso County Board of County Commissioners, who will determine whether the county will join what could be the biggest multi-plaintiff action against an industry since the big tobacco litigation, which led to a settlement in 1998 between the four largest tobacco companies in the Unit- ed States and attorneys general of 46 states, including Colorado. It required the companies to pay the states $206 billion over 25 years.

“We have been evaluating this since the end of December and January,” May says. “We are continuing to gather research and information. We’re not dragging our feet. We are evaluating what our various options are, but also doing our due diligence on what impact the opiates have had in El Paso County.”

That includes efforts to ascertain the costs to the El Paso County Sheriff’s Office, El Paso County Public Health and the Department of Human Services. Although many of the hundreds
who have filed lawsuits have attorneys in common, May’s office is equipped to handle such a case, she said. “We have civil litigation experience in federal court,” she says. That said, attorneys representing Huerfano County have been discussing the case with the county, including the prospect of adding the county as their client.

One of those is Pat Mika of Colorado Springs, who represents Huerfano County in its lawsuit, along with Springs attorney Stephen Ochs and Steven Skikos of San Francisco.

“There’s not a single person in this town [Colorado Springs] that hasn’t been somehow touched by the opioid crisis,” Mika says in an interview. “They [drug companies] have created a country filled with addicted individuals who they have gotten addicted through mislabeling, false advertising and fraudulent advertising about the benefits and nonaddictive nature of these opioids.”

Those are among the claims contained in the Huerfano County case, filed in January. The lawsuit seeks at least $750,000 in economic damages and $1.5 million in future damages from 20 drug makers and distributors such as Purdue Pharma, Johnson & Johnson, Janssen Pharmaceuticals, Teva Pharmaceuticals and McKesson Corp.

Federal drug enforcement investigators found small-town pharmacies in the San Luis Valley received shipments from McKesson similar in size to those sent to large metro areas’ drugstores, according to a report by The Washington Post and CBS’s 60 Minutes.

Huerfano County’s suit, like the others, alleges the defendants falsely downplayed the risk of addiction, claimed signs of addiction could be treated with more opioids, alleged that dependence and withdrawal could be easily managed, and falsely touted the benefits of long-term opioid use — all while knowing those things were not true.

The lawsuit also contends the companies targeted “susceptible prescribers like family doctors as well as vulnerable patient populations like the elderly and veterans.” Opioids, the most prescribed class of drugs in the country, generated $11 billion in revenue for drug companies in 2014 alone, according to the law- suit. According to a 2017 multi-agency report, “Heroin in Colorado,” heroin- related emergency room visits doubled in Colorado from 2011 to 2014.

Besides those direct impacts, the 73-page lawsuit claims that for-profit rehabilitation businesses have recruited addicts with false claims but failed to provide proper facilities or treatment. All of which means the defendants created a public nuisance, the lawsuit alleges.

Mika notes that Purdue Pharma (maker of the powerful painkiller OxyContin), its president and two other top officials paid a fine of $634.5 million in 2007 for misleading the public about the drug’s risk of addiction.

“But they continue to operate as if nothing happened,” says Mika, adding that the lawsuit is “the only way we’re going to make these people accountable.”

While May says there’s no hurry to decide whether to join the litigation, which has been consolidated into proceedings assigned to the federal court in the Northern District of Ohio, Cleveland, Mika says the clock is ticking. “We’re already in the settlement process,” he says. “If El Paso County doesn’t get on board, then they’re going to find themselves sort of hanging out there with an empty hand.”

Purdue Pharma of Stamford, Connecticut, one of the largest companies named, didn’t respond to an email seeking comment. But a statement posted on its website says, “Patients’ needs and safety have guided our steps. It’s what led us to research and develop medications to help patients. Today, it’s what has spurred us to redouble our efforts in the fight against the prescription and illicit opioid abuse crisis.”

Purdue notes it developed opioids that are harder to crush “and, therefore, harder to be abused by snorting or injection,” and “pioneered the pharmaceutical industry’s movement toward developing opioids with abuse-deterrent properties.” The firm also has distributed a Centers for Disease Control guidebook for prescribing opioids and is developing a new non-opioid pain medicine, the website says.

McKesson, of San Francisco, which paid $150 million in January 2017 to settle a case with regulators who found suspicious orders of painkillers linked to the opioid epidemic, commented recently to the Associated Press regarding the state of Kentucky’s lawsuit that the company “is commit- ted to maintaining — and continuously enhancing — strong programs designed to detect and prevent opioid diversion within the pharmaceutical supply chain.”

Johnson & Johnson, in a notice to investors in a Securities and Exchange Commission filing, noted the possibility of “significant adverse litigation or government action ... related to product liability claims and allegations concerning opioid marketing practices.”

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