County lawsuits against drug makers can march on after State Supreme Court rules
Patti Singer, Rochester Democrat and Chronicle Published 10:45 a.m. ET July 12, 2018 | Updated 11:35 a.m. ET July 12, 2018
Monroe and other counties that sued drug makers can move forward with the suits, a state Supreme Court Justice ruled. Patti Singer
(Photo: Darwin Brandis, Getty Images/iStockphoto)
Monroe County's lawsuit against opioid manufacturers marches on.
Several months ago, Monroe and other counties in New York started to sue the drug companies, claiming they misled medical providers and consumers about the addictive properties of prescription drugs like OxyContin. Therefore, the suit argues, the drug companies should repay the counties for all the money spent on law enforcement, treatment and other issues related to the opioid epidemic.
The manufacturers disagreed and said the lawsuits should be thrown out.
That didn’t happen. A State Supreme Court Justice last month ruled on behalf of the counties, saying there’s enough basis for the allegations to let the lawsuits proceed. Counties more or less had the same arguments, which boil down to saying the drug companies used deceptive practices to minimize the addictive risks of opioids.
Monroe County's lawsuit, for example, alleges drug companies began a "coordinated, sophisticated, and highly deceptive marketing campaign" in the late 1990s. The suit says the campaign became more aggressive around 2006, and continues to the present.
The federal Centers for Disease Control and Prevention and states have taken steps over the past few years to reduce the amount of opioid medication. In 2012, New York initiated the Internet System for Tracking Over-Prescribing, or I-STOP, a prescription monitoring program.
In a report issued July 12 by Excellus BlueCross BlueShield, commercially insured Blues members in New York had a greater decline in opioid prescriptions from 2013-2017 than the national average.
The Excellus report was part of a study released by the national Blue Cross Blue Shield Association. Excellus is the dominant insurer in the Rochester region.
It does not contain data on people not insured by Excellus BlueCross BlueShield.
For this area, Excellus reported a 33 percent decrease in opioid prescriptions from 2013 through 2017. It reported that 51 percent of Excellus members had all their prescriptions meet CDC recommendations for the dose and duration.
As for counties seeking redress from what they say is the damage of opioids, the justice's decision to let the lawsuits proceed doesn’t mean the counties are right. All it does is start a laborious process that may take years. Barring a settlement or some other action, pharmaceutical companies could end up on trial in every county that filed a lawsuit.
The lawsuits were filed with no cost to taxpayers.
Sarah Burns is partner with the firm Simmons Hanly Conroy, which has offices in Illinois and New York, that is handling the case for Monroe and some other counties. She explained where things stand.
What does it mean that lawsuits can go forward?
Burns said the case isn’t about only what counties have spent, but it’s about funding future needs. “Even if we were to stop the epidemic or take all opioids off the market tomorrow, it wouldn’t be the end of the epidemic. The lawsuit is about helping counties … serve their residents in dealing with the epidemic.”
Did the counties win anything?
“I hesitate to say that anything involving the opioid epidemic is a victory,” she said. “This is a big step in the right direction to try to make it right for each county and their residents.”
Are all counties asking for same things?
The cases and all the allegations were consolidated into one, said Burns, whose firm represents about 20 counties. Counties can choose which parts of the complaint they want to join. They also can add their own allegations.
Is this the same as a class action?
No. In a class action, you can be part of a claim and recover damages without filing a lawsuit, Burns said. This is called a mass tort, where multiple parties each file a lawsuit and then band together to prosecute that suit as a team. “If a single county had filed this case, they would have been buried. There’s power in numbers. Each of the counties is more likely to find some relief if they’re together.” Burns’ firm is working with Napoli Shkolnik, which represents other counties.
If my doctor prescribed me opioids, is he or she part of this suit?
No. The litigation is against manufacturers and wholesalers. There originally were four physicians named, but they are alleged to be pain doctors with a national presence who were hired by pharmaceutical companies to be what’s called "thought leaders" who influenced the medical profession.
Could this be like the tobacco settlement, where money doesn’t go to fight the problem?
The opioid suits have been compared to the tobacco litigation in the 1990s. States sued tobacco companies over damages related to smoking. Companies paid states $246 billion in exchange for them to drop their suits. The settlement did not stipulate how the money was to be spent, and not all of it went to tobacco-related issues. Burns said it’s too soon to talk about stipulations of any awards, and she did not want to go on the record about what would happen.