Central Mass. towns join legal fight against Big Pharma to recover costs incurred by opioid crisis
Eight Central Massachusetts municipalities, among more than 30
statewide, have signed on to join litigation seeking to recover
municipal costs incurred because of the opioid crisis.
And the number of cities and towns is expected to keep growing.
In Central Mass., Auburn, Charlton, Dudley, Northbridge, Southbridge, Sturbridge, Sutton and Winchendon have agreed to join other Massachusetts municipalities in litigation. Although they haven’t formally signed the lawsuit, Millbury and Webster both voted last week in favor of joining the litigation.
In addition, 30 more municipalities have provided verbal commitments and have contracts forthcoming, according to J. Tucker Merrigan, a partner at Sweeney Merrigan Law, LLP, of Greenfield and Boston. He said the opioid crisis has hit the commonwealth hard and now is the time to fight back and recoup losses but, he acknowledged, the resolution is not going to be quick and easy.
“We’re going up against the world’s largest pharmaceuticals, manufacturers and distributors, the biggest companies in the world,” Mr. Merrigan said. “It could take years but, given what we know now, it could also be a motivation to try to talk resolution, but it would be extremely complicated. So even when there is a demonstrated interest in resolving it, it will still take a significant amount of time.”
The mass tort litigation is being filed through the Massachusetts Opioid Litigation Attorneys, a consortium of lawyers suing large pharmaceutical manufacturers and distributors on behalf of the taxpayers of individual municipalities. In addition to Sweeney Merrigan Law, MOLA consists of the firms of Rodman, Rodman & Sandman of Malden and KP Law, PC in Boston.
“The manufacturers’ case is primarily based on the marketing efforts and the misrepresentation of the addictive properties or opioid drugs,” Mr. Merrigan said. “They were marketed as a chronic lifetime drug to be taken every day with a bad back, for example. And of course, the coined term by them would be ‘pseudoaddiction,’ which stands for the fact that individuals’ pill-seeking behavior is not the result of an addiction but, in fact, a reflection of under-treatment of pain.”
As for the pharmaceutical distributors, Mr. Merrigan said they are pursuant to the federal Controlled Substance Act of 1970.
“Federal law requires drug distributors to report orders of unusual size or frequency or that deviant from a buyer’s usual pattern,” Mr. Merrigan said. “And they’re under the duty to make that report to the DEA.”
Mr. Merrigan said the three biggest pharmaceutical distributors that
failed their duty under the Controlled Substance Act are all Fortune 15
companies - McKesson Corp. (ranked 5), AmerisourceBergen Drug Corp. (11)
and Cardinal Health Inc. (15). Those three companies combined made more
than $490 billion in revenue last year, he said.
MOLA is also working on the lawsuit with six national law firms, including Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, PA in Pensacola, Florida; Greene, Ketchum, Farrell, Bailey & Tweel, LLP of Huntington, West Virginia; Baron & Budd, PC in Dallas; Hill Peterson Carper Bee & Dietzler PLLC in Charleston, West Virginia; Powell & Majestro, PLLC in Charleston, West Virginia; and McHugh Fuller Law Group in Hattiesburg, Mississippi.
In consideration, the municipalities that have signed on agree to pay 25 percent of the total recovery, whether the claim is resolved through compromise, settlement or trial and verdict (and appeal). The municipalities pay nothing if there is no recovery, according to the agreement.
“It’s important to know that this is not a class action case, so the recovery for each municipality will be different,” Mr. Merrigan said. “However, in the discussion of reported overdoses and reported deaths, it’s our position that many of those statistics are actually under-reported and the number is much higher. However, the CDC says over 63,000 people died as a result of overdose deaths nationally in 2016.”
The litigation focuses on the wholesale distributors and manufacturers of opioids and their role in the diversion of millions of prescription opiates into the illicit market which has resulted in opioid addiction, abuse, morbidity and mortality.
The firm intends to present a damage model designed to abate the public health and safety crisis. This damage model may take the form of monetary damages and/or equitable remedies (e.g., an abatement fund). The purpose of the lawsuit is to seek reimbursement of the costs incurred fighting the opioid epidemic and/or recover the funds necessary to abate the health and safety crisis caused by the “unlawful conduct” of the whole distributors and manufacturers of the opioids, according to the agreement.
In 2010, the state Department of Public Health reported 560 opioid-related deaths; in 2011, 656 opioid-related deaths; in 2012, 742 opioid-related deaths; in 2013, 961 opioid-related deaths; in 2014, 1,352 opioid-related deaths; in 2015, 1,648 confirmed opioid-related deaths, plus an additional 120 unreported opioid-related deaths for a total of 1,768 deaths; in 2016, 2,083 confirmed deaths, plus an additional 72 unreported opioid-related deaths for a total of 2,155 estimated; and in 2017, 1,501 confirmed deaths, plus an additional 476 unreported opioid-related deaths for a total of 1,977 estimated.
The figures of confirmed and estimated cases of opioid-related
overdose deaths for 2017 shows an 8.3 decrease from 2016′s total
confirmed and estimated cases, according to the DPH.
In Worcester County, the number of reported opioid-related overdose deaths have been gradually increasing. In 2010, there were 80 opioid-related overdose deaths; 82 in 2011; 91 in 2012; 115 in 2013; 162 in 2014; 224 in 2015; and 260 in 2016, according to the DPH.
From 2010 to 2016, opioid-related overdose deaths in Worcester County have more than tripled, from 80 in 2010 to 260 in 2016.
However, the number of opioid-related overdose deaths, from 2012 to 2016, are relatively low for the Central Massachusetts municipalities that have already signed onto the lawsuit.
Worcester, which hasn’t yet signed on to the lawsuit, has much higher numbers than its Central Mass. neighbors. The number of opioid related overdose deaths for Worcester are 29 for 2012; 43 for 2013; 56 for 2014; 79 for 2015; and 73 for 2016, according to the DPH.
According to statistics from the Worcester Police Department, there were 70 confirmed and suspected fatal heroin or opiate-related overdoses last year, a scant 4 percent decrease from the 73 overdose deaths reported to the DPH for 2016. Opioid-related overdose deaths in Worcester peaked in 2015 with 79, which was a 41 percent increase from 56 deaths in 2014, according to the DPH.
Overall 911 calls for overdoses of any drug, both fatal and nonfatal, in Worcester increased by 7 percent to 1,238 in 2017 from 1,156 in 2016. This number is the highest reported by police in 10 years.
According to Amy Peterson, communications specialist for the
Worcester City Manager’s office, City Manager Edward M. Augustus Jr. is
very interested in joining this legal action and is reviewing proposals
from different law firms with the city solicitor. He expects to make an
announcement sometime this week, she said.
Even more alarming than the opioid overdose death numbers are the opioid prescription numbers.
The DPH’s Prescription Drug Monitoring Program (for October-December 2017) reports 79,203 opioid prescriptions for Worcester County, with 5,011,873 opioid solid dosage units administered and 34,919 individuals receiving opioid prescriptions. The same report also found 35 individuals with activity of concern “thresholds,” based only on a three-month time period.
In order to obtain timelier estimates of the total number of opioid-related overdose deaths in Massachusetts - confirmed and probable – the DPH used predictive modeling techniques for all cases not yet finalized by the Office of the Chief Medical Examiner. Based on the data available as of Jan. 25, the Department of Public Health estimates that there will be an additional 113 to 128 deaths in 2015, and an additional 67 to 77 deaths in 2016, once these cases are finalized.
And the number of cities and towns is expected to keep growing.
In Central Mass., Auburn, Charlton, Dudley, Northbridge, Southbridge, Sturbridge, Sutton and Winchendon have agreed to join other Massachusetts municipalities in litigation. Although they haven’t formally signed the lawsuit, Millbury and Webster both voted last week in favor of joining the litigation.
In addition, 30 more municipalities have provided verbal commitments and have contracts forthcoming, according to J. Tucker Merrigan, a partner at Sweeney Merrigan Law, LLP, of Greenfield and Boston. He said the opioid crisis has hit the commonwealth hard and now is the time to fight back and recoup losses but, he acknowledged, the resolution is not going to be quick and easy.
“We’re going up against the world’s largest pharmaceuticals, manufacturers and distributors, the biggest companies in the world,” Mr. Merrigan said. “It could take years but, given what we know now, it could also be a motivation to try to talk resolution, but it would be extremely complicated. So even when there is a demonstrated interest in resolving it, it will still take a significant amount of time.”
The mass tort litigation is being filed through the Massachusetts Opioid Litigation Attorneys, a consortium of lawyers suing large pharmaceutical manufacturers and distributors on behalf of the taxpayers of individual municipalities. In addition to Sweeney Merrigan Law, MOLA consists of the firms of Rodman, Rodman & Sandman of Malden and KP Law, PC in Boston.
“The manufacturers’ case is primarily based on the marketing efforts and the misrepresentation of the addictive properties or opioid drugs,” Mr. Merrigan said. “They were marketed as a chronic lifetime drug to be taken every day with a bad back, for example. And of course, the coined term by them would be ‘pseudoaddiction,’ which stands for the fact that individuals’ pill-seeking behavior is not the result of an addiction but, in fact, a reflection of under-treatment of pain.”
As for the pharmaceutical distributors, Mr. Merrigan said they are pursuant to the federal Controlled Substance Act of 1970.
“Federal law requires drug distributors to report orders of unusual size or frequency or that deviant from a buyer’s usual pattern,” Mr. Merrigan said. “And they’re under the duty to make that report to the DEA.”
MOLA is also working on the lawsuit with six national law firms, including Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, PA in Pensacola, Florida; Greene, Ketchum, Farrell, Bailey & Tweel, LLP of Huntington, West Virginia; Baron & Budd, PC in Dallas; Hill Peterson Carper Bee & Dietzler PLLC in Charleston, West Virginia; Powell & Majestro, PLLC in Charleston, West Virginia; and McHugh Fuller Law Group in Hattiesburg, Mississippi.
In consideration, the municipalities that have signed on agree to pay 25 percent of the total recovery, whether the claim is resolved through compromise, settlement or trial and verdict (and appeal). The municipalities pay nothing if there is no recovery, according to the agreement.
“It’s important to know that this is not a class action case, so the recovery for each municipality will be different,” Mr. Merrigan said. “However, in the discussion of reported overdoses and reported deaths, it’s our position that many of those statistics are actually under-reported and the number is much higher. However, the CDC says over 63,000 people died as a result of overdose deaths nationally in 2016.”
The litigation focuses on the wholesale distributors and manufacturers of opioids and their role in the diversion of millions of prescription opiates into the illicit market which has resulted in opioid addiction, abuse, morbidity and mortality.
The firm intends to present a damage model designed to abate the public health and safety crisis. This damage model may take the form of monetary damages and/or equitable remedies (e.g., an abatement fund). The purpose of the lawsuit is to seek reimbursement of the costs incurred fighting the opioid epidemic and/or recover the funds necessary to abate the health and safety crisis caused by the “unlawful conduct” of the whole distributors and manufacturers of the opioids, according to the agreement.
In 2010, the state Department of Public Health reported 560 opioid-related deaths; in 2011, 656 opioid-related deaths; in 2012, 742 opioid-related deaths; in 2013, 961 opioid-related deaths; in 2014, 1,352 opioid-related deaths; in 2015, 1,648 confirmed opioid-related deaths, plus an additional 120 unreported opioid-related deaths for a total of 1,768 deaths; in 2016, 2,083 confirmed deaths, plus an additional 72 unreported opioid-related deaths for a total of 2,155 estimated; and in 2017, 1,501 confirmed deaths, plus an additional 476 unreported opioid-related deaths for a total of 1,977 estimated.
In Worcester County, the number of reported opioid-related overdose deaths have been gradually increasing. In 2010, there were 80 opioid-related overdose deaths; 82 in 2011; 91 in 2012; 115 in 2013; 162 in 2014; 224 in 2015; and 260 in 2016, according to the DPH.
From 2010 to 2016, opioid-related overdose deaths in Worcester County have more than tripled, from 80 in 2010 to 260 in 2016.
However, the number of opioid-related overdose deaths, from 2012 to 2016, are relatively low for the Central Massachusetts municipalities that have already signed onto the lawsuit.
Worcester, which hasn’t yet signed on to the lawsuit, has much higher numbers than its Central Mass. neighbors. The number of opioid related overdose deaths for Worcester are 29 for 2012; 43 for 2013; 56 for 2014; 79 for 2015; and 73 for 2016, according to the DPH.
According to statistics from the Worcester Police Department, there were 70 confirmed and suspected fatal heroin or opiate-related overdoses last year, a scant 4 percent decrease from the 73 overdose deaths reported to the DPH for 2016. Opioid-related overdose deaths in Worcester peaked in 2015 with 79, which was a 41 percent increase from 56 deaths in 2014, according to the DPH.
Overall 911 calls for overdoses of any drug, both fatal and nonfatal, in Worcester increased by 7 percent to 1,238 in 2017 from 1,156 in 2016. This number is the highest reported by police in 10 years.
Even more alarming than the opioid overdose death numbers are the opioid prescription numbers.
The DPH’s Prescription Drug Monitoring Program (for October-December 2017) reports 79,203 opioid prescriptions for Worcester County, with 5,011,873 opioid solid dosage units administered and 34,919 individuals receiving opioid prescriptions. The same report also found 35 individuals with activity of concern “thresholds,” based only on a three-month time period.
In order to obtain timelier estimates of the total number of opioid-related overdose deaths in Massachusetts - confirmed and probable – the DPH used predictive modeling techniques for all cases not yet finalized by the Office of the Chief Medical Examiner. Based on the data available as of Jan. 25, the Department of Public Health estimates that there will be an additional 113 to 128 deaths in 2015, and an additional 67 to 77 deaths in 2016, once these cases are finalized.
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