Jason Thompson: My name is Jason Thompson, and I’m here today with two of my partners from Sommers Schwartz law firm- Lisa Esser and Rob Sickels. And today, we’re going to talk about the opioid litigation in America.
How Bad is the Opioid Crisis in the United States
Jason: Why don’t you tell us how bad the opioid epidemic is?
Lisa Esser-Weidenfeller: Yeah, so last year, Jason, over 64,000 people died in the US from opioid overdose. That is now the leading cause of death for those under 50.
How Bad is the Opioid Crisis in Michigan?
Jason: And how bad is the problem here in our home state of Michigan?
Lisa: So Michigan is part of the Midwest. The Midwest has been the hardest hit in this opioid epidemic. Michigan, sales have increased 41% since 1999 in terms of opioids. We rank 10th in opioid sales and 15th in opioid overdose deaths.
What Are Opioids?
Jason: And when we talk about opioids, what are we actually referring to? What type of drugs?
Lisa: So when you’re talking about opioids, you’re talking about class two substances under the Controlled Substance Act– Vicodin, OxyContin, oxycodone, fentanyl, morphine. Those are the drugs that we’re really talking about when we hear the term opioids.
What Has This Epidemic Cost Michigan Municipalities?
Jason: And what has been the cost to Michigan municipalities when it comes to the opioid epidemic?
Robert Sickels: Let me respond to that, Jason. The costs to municipalities, cities, and counties has been enormous. Yesterday, I was talking to a sheriff from a county in northern Michigan, and he explained to me the enormous cost that his county has incurred just with respect to incarceration. Other law enforcement costs involve medical care to incarcerated individuals. And then,there’s the care associated with mental health and education programs. So the cost to municipal governments has been enormous.
What Legal Action is Being Taken Against the Opioid Industry?
Jason: In terms of a solution to this problem, tell us a little bit about what the litigation options involve.
Robert: Well, to date, there have been hundreds of counties across America that have filed lawsuits against five of the largest pharmaceutical companies in America and three of the largest distributors, and there are various claims of liability that has been asserted against these two groups of defendants. With respect to the manufacturers, the claims relate to a decade, more than a decade, of deceptive marketing practices.
Are there Different Legal Claims Against Manufacturers and Drug Distributors
Jason: You mentioned lawsuits against the manufacturers and, I think, the distributors or wholesalers. Can you talk about the differences of those claims?
Robert: The claims against big pharma, the manufacturers, who have reaped billions of dollars in profits from the sales of prescription opioids relay primarily to deceptive marketing practices that have taken place over many years. How they deceived physicians and the public relates to their claim that opioids were safe and effective for chronic pain patients when, in fact, there were no sound studies that supported those claims. Distributors were charged under the Controlled Substances Act with the duty to monitor sales to pharmacies across America and to report suspicious sales or excessive sales so that the DEA would have the opportunity to investigate these sales. For years, the distributors failed in their duty to report suspicious sales for obvious reasons. They were reaping billions of
dollars in profits as well.
How is the Litigation Against Drug Companies Being Pursued?
Jason: This sounds like a large piece of litigation. How is this litigation being filed, and pursued, and managed across the country?
Robert: Well, many claims have been filed on behalf of cities and counties already in federal courts alleging various theories of liability and in addition to deceptive trade practices also violations of RICO and public nuisance claims.
What Part Does Sommers Schwartz Play in the Opioid Litigation?
Jason: How is Sommers Schwartz involved in this litigation?
Lisa: So we’ve joined with a number of litigation firms nationally because this is just simply going to take a lot of resources, a lot of money a lot of manpower. So we’ve joined with five national firms. And we as Sommers Schwartz have a lot of experience in terms of representing municipalities with class actions, mass torts. We are well versed in this subject. Because of the number of
resources it’s going to take, we understand that those costs cannot be the burden of municipalities. So as part of this litigation, we’re approaching it on a contingency fee basis.
Robert: And I would like to point out that the five firms that we’re affiliated with currently have over 85 counties and cities that have retained them, and they have filed lawsuits on behalf of them already. And the discovery process, the litigation process, is moving forward.
What Involvement Is Required from a Municipality to Join in the Opioid Litigation?
Jason: And how much involvement is going to be required on behalf of a municipal client should they wish to get involved in this litigation?
So it’s not going to cost them anything in terms of hard costs or money from their budget. We will need to sit down with them to put their damage model together– how much they’ve expended on law enforcement, healthcare, education–to figure out what they really need from this litigation and also to figure out what they’re going to need in the future in terms of evading the nuisance that has been caused by the opioid epidemic in their community.
How Much is a Municipality’s potential damages?
Jason: And without knowing the full list of damages, has Sommers Schwartz done any research to determine the general size of the claim a municipality may have?
Robert: Well, there have been damage models constructed by members of our group. And suffice it to say that the damages incurred by large, mid, even small counties will be in the millions
and millions of dollars.
Jason: Is there anything else that you’d like to add?
Robert: Well, I would like to point out that we are working closely with a number of experts in the field who have studied this problem, experts who have concluded that there is responsibility, significant responsibility, on the part of manufacturers and distributors in fueling this epidemic. Part of our team also includes three former DEA agents who have actually been involved in the prosecution of enforcement actions against manufacturers and distributors. And something that county officials should know is that already one of the largest distributors, McKesson, has been fined $150 million for their dereliction of duties with respect to reporting suspicious sales to counties. So there shouldn’t be any question about whether the manufacturers and the distributors bear a significant responsibility for this epidemic.
Are Doctors Being Sued As Well?
Jason: Obviously, opioids are a prescribed drug, and there’s prescriptions involved. Can you talk a little bit about what the doctor’s role is and how the doctors are involved or not involved in this litigation?
Lisa: So this litigation is not targeted against any doctor or even the addict. It’s simply against the manufacturers and the wholesale distributors of these opioids. And Rob, I think, can address why we’re not targeting the doctors at this time.
Robert: Well, there’s no question that over the years numerous pill mills have cropped up, and there have been many criminal prosecutions of individual doctors. But this case is about seeking relief for counties and cities that have had to bear the economic burden of the opioid epidemic. And something to keep in mind is that there was a period of time back in the ’70s when opioids were prescribed very sparingly by physicians because of their concern for the addictive qualities of these medicines. But then, big pharma came along and armed with a couple studies that seemed to indicate that for long-term pain relief opioid medications were not addictive, but these studies were severely flawed. And most scientists appreciated the fact that these studies were flawed. But nonetheless armed with these studies, big pharma launched a hugely funded campaign to convince physicians in America that opioid medications were not addictive for long-term chronic pain, and that’s just not true. They weren’t truthful with the American public. They weren’t truthful with physicians.
Will This Litigation Threaten the Proper Use of Opioids?
Jason: Is there a risk that this litigation will result in people being denied opioid medication, the people that actually need it?
Robert: Absolutely not. I mean, there is a proper role for some opioids in the treatment of acute pain, such as cancer patients or immediate post-operative patients. But as long as the prescriptions are limited and targeted, they will always be allowed. There’s no chance whatsoever that opioid prescriptions are going to be taken off the market entirely.
Are There Statistics About the Actual Cost of the Opioid Epidemic on Michigan Municipalities?
Jason: Has Sommers Schwartz done any research as to the effect of any particular municipality?
Lisa: Great question. So earlier this year, we did a FOIA request in the state of Michigan trying to get the data, to find out exactly what the numbers were in terms of the opioids being shipped in each county. And what we got in response was tens of thousands of pages of records. And what we’re able to do with that data is go through by zip code, by pharmacy and figure out exactly how many pills were shipped in each county for each quarter of each year in the last several years. And during our talks with county officials, we’re able to put that data together specifically for them.
Robert: An amazing sidelight is how surprised the county officials are when they hear the numbers of pills that have been sold into their communities. They are usually aghast.
Lisa: Rob and I were in a community two days ago, and we had put the numbers together for them. This community had a population of 25,000 people. But in just one quarter there, there was 505,000 pills shipped in. That’s one quarter of one year with a population of 25,000. That gives you a glimpse into what kind of numbers we’re talking about here.
Robert: At this meeting, there was a sheriff present, and it was amazing to listen to him explain exactly what is involved in terms of law enforcement with respect to overdoses and addiction and the amount of resources that they have to bring to bear to deal with this crisis. It’s phenomenal.
What Economic Harm Have Michigan Municipalities Suffered?
Jason: And how do all of these pills that you reference translate into actual costs and harm to the municipalities?
Robert: Well, historically speaking, there’s an obvious correlation between the number of pills that are sold in a particular community, in the county, and the levels of addiction, and also there’s a correlation between the number of pills and the number of resources that a county must bring to bear to deal with addiction and crime.
How Have Municipalities Handled the Financial and Social Costs of the Opioid Epidemic
Jason: So if I understand it, the number of addicts in a community would translate to things such as crime, larceny, actually coroner costs, health costs, treatment for addiction, all of those related costs. How is a municipality, whether it be a city or county, bearing the cost of all of those?
Robert: It is literally requiring counties to increase their budgets for law enforcement, for health care, for medical examiner fees because of the overdoses that result in deaths.
Lisa: In addition to the things that Rob just mentioned, counties are also having to equip their patrolmen with Narcan. That is an expense to the counties. They’re administering this medication for those that are suffering from an overdose, trying to bring them back quickly. Counties have also expended thousands of dollars on drug courts because the number of people coming in because of addiction overdose is just overwhelming their court system, so they’re having to literally set up and establish a whole other type of court system within the global court system to try to deal with this. So those are all things that can be recuperated for the counties in terms of costs.
Jason: Thank you both very much.