King County Superior Court Judge Michael Scott has the daunting task of determining whether three of the state’s largest distributors of opioid medications had reasonable protections in place to ensure the drugs couldn’t wind up in the wrong hands or whether those companies share responsibility for driving — and should pay to help remedy — the fallout from the state’s opioid epidemic.
Scott spent six hours on Monday hearing opening statements in a civil lawsuit filed by State Attorney General Bob Ferguson in 2019 that seeks damages from three drug-distribution companies: McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp.
The bench trial before Scott is expected to last at least 12 weeks and involves more than two decades’ worth of drug policy and guidelines that have evolved with changing standards of care for managing patients’ pain and growing awareness of the effect of opioid abuse and addiction on communities statewide.
The state argued the drug distributors are responsible for sending “a mountain of pills” into Washington, violating state and federal law and creating the conditions that have led to the public nuisance of illicit drug use. But the distribution companies say they’re not to blame because they, like the hospitals and pharmacies they serve, are licensed by the federal Drug Enforcement Administration and the state, and they comply with regulations that restrict access to controlled substances.
Further, attorneys for the drug distributors argued the overprescribing of opioids has led to “medicine cabinet” diversion — sending into the illegal market — of prescription drugs, which accounts for up to 70% of nonmedical uses, and the importation of fentanyl from outside the U.S. by criminals.
The lawsuit filed by Ferguson on behalf of Washington communities accuses McKesson, Cardinal Health and AmerisourceBergen of shipping vast amounts of oxycodone, fentanyl and other painkillers across Washington and failing to comply with requirements that they identify and report suspicious orders. The state has also filed a lawsuit against Johnson & Johnson, with that trial scheduled to begin in January.
Ferguson spoke for a little over eight minutes Monday morning before two special assistant attorneys general laid out the state’s case for damages and a plan to stamp out the crisis. Attorneys for each of the distributors each got an hour to present their opening statements before Scott in proceedings that were livestreamed on YouTube.
Ferguson called the nation’s opioid epidemic “the worst man-made public health crisis in history” and said the state’s lawsuit is meant to hold distributors accountable for extraordinarily excessive shipments of opioids to Washington.
Ferguson detailed some of the devastating impacts of the opioid crisis on the state:
More than 10,800 Washington residents have died from overdoses since 2006 “and many more have had their lives ravaged by opioid-use disorders,” he said. Opioid-related hospitalizations quadrupled between 2000 and 2018; hundreds of babies are born each year affected by their mothers’ opioid use during pregnancy; and up to 7% of the state’s 10th graders are misusing prescription drugs, Ferguson said.
“The evidence will show distributors are all Fortune 15 companies. Each takes in more gross revenue every year than the annual budget for the state of Washington,” he said. “The evidence will show distributors — despite their duty and capacity — fell short, far short, of their obligations under the Controlled Substances Act to design and operate a system to prevent the diversion of prescription pills from illegitimate use.”
Ferguson’s office is also seeking significant civil penalties against each distributor for multiple violations under the state’s Consumer Protection Act.
Ferguson in July rejected the state’s proposed part of a $26 billion settlement with the three drug companies, as well as Johnson & Johnson, related to the opioid addiction and overdose crisis.
Under the proposal, the companies that distributed opioids would have paid Washington an estimated total of $527.5 million over 18 years if all of the state’s cities and counties opted in and released any current or future claims. But if some cities opt out, the state and participating municipalities would lose up to 50% of the payment, Ferguson said.
“The settlement is, to be blunt, not nearly good enough for Washington,” Ferguson said at the time. “It stretches woefully insufficient funds into small payments over nearly 20 years, to be shared among more than 300 Washington jurisdictions.”
The companies have said they have been taking steps to help address the crisis and noted that they fulfill prescription orders placed by properly licensed health care providers.
In an opening statement for the state, Special Assistant Attorney General Don Migliori said the three companies have individually and collectively injured and endangered public health, likening the distributors to substations and transformers that deliver electricity from power plants to individual consumers.
“Simply put, these defendants shipped a mountain of pills into the state since the launch of OxyContin in 2006,” he said. “These are not truck drivers, your honor … These distributors understood they were at the very center of this sophisticated [supply] chain.”
Attorney Bob Nicholas, who spoke on behalf of Amerisource Bergen, said the state’s whole case is based on distributors oversupplying opioids — but told Judge Scott the state won’t tell him how many pills should have been shipped versus how many should not have been shipped, because that would require second-guessing thousands of doctors across the state.
“We did not cause the opioid crisis in the state of Washington,” he said, noting distributors know nothing about individual patients or their medical conditions and state officials have previously found 99% of doctors prescribed opioids to their patients in good faith.
Enu Mainigi, one of the attorneys representing Ohio-based Cardinal Health, said in the late 1990s and early 2000s, an overwhelming consensus emerged from the medical community that chronic and acute pain was being undertreated in the U.S. and that opioids were the most effective way to treat that pain. She said Cardinal Health ships thousands of medical products, from face masks and IV kits to medications used to treat myriad health conditions.
“We are a mirror of what’s happening in health care; we don’t drive it,” Mainigi said.
The start of the trial in Washington’s most populous county comes within weeks of a ruling by a state judge in California who found that four drug companies weren’t responsible for that state’s opioid epidemic, and a 5-1 decision in Oklahoma’s state Supreme Court that found Johnson & Johnson can’t be held liable for Oklahoma’s opioid crisis, with justices tossing out a landmark $465 million in damages, according to NPR.
Information from Seattle Times archives is included in this story.