State of Oklahoma v. Purdue Pharma L.P., et al.—Is this a Tipping Point for a Wave of Larger Verdicts Against Opioid Prescribers, Manufacturers, Distributors and Retailers?

On August 26, 2019 a judge in Oklahoma, after a 33 day bench trial, ruled that Johnson & Johnson intentionally played down the dangers and oversold the benefits of opioids, and ordered it to pay the state $572 million in the first trial of a drugmaker. It is the first time a trial court has held a drugmaker accountable for the nation’s opioid crisis, which has contributed to over 700,000 drug overdose deaths in the United States since 1999.

His finding that Johnson & Johnson had breached the state’s “public nuisance” law was a significant aspect of his ruling. The Judge wrote that Johnson & Johnson had promulgated “false, misleading, and dangerous marketing campaigns” that had “caused exponentially increasing rates of addiction, overdose deaths” and babies born exposed to opioids. Sadly, one of the trial attorneys for the state of Oklahoma had lost a son to opioid abuse.

In 2016 the Center for Disease Control (CDC) published recommendations for the prescribing of opioid pain medication for patients age 18 and older in primary care settings. Recommendations focus on the use of opioids in treating chronic pain (pain lasting longer than 3 months or past the time of normal tissue healing) outside of active cancer treatment, palliative care, and end-of-life care. Already, more than 30 states have passed laws based on the CDC guidelines, including Virginia.

Also in 2016, Virginia declared the opioid crisis a Public Health Emergency in Virginia. The Virginia Board of Medicine published a new Rule in 2018 governing the prescribing of opioids and buprenorphine in all areas of health care.

While federal and state authorities have sounded the warning and issued guidelines for the use of opioids, there are still many physicians prescribing recklessly. Last year more people died from drug overdoses than in the entire Vietnam war. The United States represents only 5% of the world’s population, and yet, it consumes approximately 80% of the global opioid supply. This author believes that it is only with significant civil judgments and criminal prosecutions that will we see significant curbing of this national crisis impacting our communities. Further, this author believes this case may be the tipping point for more civil judgments against the multiple players involved in this epidemic.

As to civil actions, we are likely to see more lawsuits brought against prescribing physicians, manufacturers, distributors and retailers.

Some of the many opioid medications that are currently available in the United States include (but are not limited to):

• Austral® and Duragesic® (fentanyl)
• Demerol® (meperidine)
• Methadoes® and Dolphin® (methadone)
• Duramorph® (morphine)
• Butrans® and Belbuca® (buprenorphine)
• OxyContin® and Percocet® (oxycodone)
• Vicodin® (hydrocodone)

Lawsuits Against Prescribing Physicians

To successfully recover damages from your doctor, you must establish that the doctor was negligent in prescribing your opioids and that you suffered damages as a result. Doctors must adhere to an acceptable standard of care. This is an obligation to provide care in a manner consistent with how other physicians in your community would provide care. Virginia does have a cap of an award of damages for malpractice that adjusts annually. The current cap is 2.4 Million Dollars.

Examples of likely negligent conduct include prescribing too great a quantity or dose, prescribing opioids to a patient with a known history of opioid or substance abuse, failing to monitor with urine screening and review of the PMP (Prescription Monitoring Program), prescribing opioids concurrently with benzodiazepines, etc.

Lawsuits Against Manufacturers, Distributors and Retailers

There are now about 2,000 lawsuits, largely from various levels of government, consolidated with a federal judge in Ohio in an attempt to reach a single landmark legal resolution to the opioid epidemic — one that may force opioid makers like Johnson & Johnson, but also distributors like CVS, to fork out even more to help pay for the opioid crisis.

The complaints typically allege that the wholesale distributors and retailers violated the federal Controlled Substances Act by failing to alert the U.S. Drug Enforcement Administration of suspicious opioids purchases, such as orders of unusual size, pattern or frequency. The claims against the manufacturers are often based on allegations that the companies exaggerated the benefits of the medication and were aware that the drugs were being overly prescribed, yet failed to warn of the extremely addictive nature of the narcotics.

Suing a drug manufacturer for a drug’s danger or its addictive properties will generally take the shape of a product liability lawsuit, whereby a manufacturer can be held liable for a dangerous or defective product.

The U.S. Supreme Court ruled in 2009 that FDA approval is merely the minimum standard to bring a new drug to market. Under the ruling, companies are still responsible for deciding if additional warnings or other measures are needed to protect patients who use their products. If the company fails to provide those safeguards and you are injured, you may be able to sue.

There are three paths to hold a drug manufacturer liable based on pharmaceutical drug liability:

1. Defects in Warnings: Alleging a drug company’s failure to properly warn consumers of known risks in using its medications. Drug companies can be held liable for providing inadequate warnings, inaccurate warnings, or no warnings at all. This is the most viable path for securing liability against drug manufacturers related to opioids. In particular, the failure by the manufacturer to adequately warn of the drug’s significant addictive properties.
2. Defects in Manufacturing: Alleging a mistake in the production of a drug that renders it a danger to consumers. These lawsuits generally arise when medication is contaminated at a production facility. This path towards liability is also challenging if the drugs involved were properly manufactured.
3. Defects in Design: Alleging a drug poses an unreasonable risk to consumers even if it is manufactured and used as intended. These include only foreseeable risks, and a drugmaker can be held liable if it knew about and ignored those risks. Heretofore, these lawsuits against pharmaceutical companies have been rare since liability is often not found when some safe use of the drug can be demonstrated.

If you or a loved one has been injured due to use of opioids, you may have a cause of action against the prescribing physician, manufacturer, distributor and/or retailer.

Scott Ford is a trial attorney with the law firm of Ford Richardson based in Richmond, Virginia with satellite locations in Roanoke, Fairfax and Virginia Beach.

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