Trials in California, West Virginia and New York – Opioid Big Pharma Trial Strategy: “Deny The Opioid Crisis Ever Existed”
PROFITS BEFORE PATIENTS
The Santa Clara, Orange and Los Angeles County Opioid lawsuits, filed in May 2014, allege that the defendants—including opioid manufacturers Purdue Pharma L.P., Janssen Pharmaceuticals, Inc., Endo Health Solutions, Inc., and Actavis PLC—engaged in a deceptive marketing scheme that trivialized the risks of opioids, resulted in rampant over-prescribing, and led to a nationwide epidemic of opioid abuse and addiction. This is the basis for “race no. 1” of the upcoming Opioid Trial Trifecta of trials, that will determine what the field of Big Pharma defendants will end up paying into the Opioid Settlements, being negotiated across the country.
Mass Tort News was offered the following statement by James Williams one of the initial governmental counsel who addressed the need to file claims against the opioid industry as far back as 2014.
Santa Clara County Counsel James R. Williams:
“We are proud to have filed the first government-initiated lawsuit in the nation against opioid manufacturers for their role in creating the crisis of opioid addiction, abuse, and overdose death that plagues our communities. Defendants deceived the public about the real dangers of opioids, putting profit before the public’s health. After seven years of hard-fought litigation, we look forward to proving our case at trial, holding these manufacturers accountable, and securing much needed funds to address the ongoing opioid crisis in our communities.”
Current Trial Docket:
People of the State of California v. Purdue Pharma LP, et al., case number 30-2014-00725287-CU-BT-CXC, in the Superior Court of California in Orange County.
- Bench trial held entirely remotely.
- Trial proceedings are on Mondays, Tuesdays and Wednesdays each week, 9 a.m. to noon and 1:30 p.m. to 4:30 p.m. PT (with a 15-minute break midmorning and midafternoon).
Link to view proceedings: Click To View
- (Note: The trial link will remain the same throughout the duration of the trial.)
Additional information is available on the Trial Fact Sheet.
The full case docket can be accessed here:
https://ocjustice.occourts.org/civilwebShoppingNS/Login.do and then search by case number (00725287) and Year Filed (2014).
Defense Infighting Emerges
Allergan defense counsel Donna Welch, in her opening statements in front of Judge Wilson, initially threw co-defendants in the opioid litigation “The Pharmacy Chains” under the bus, claiming they were the responsible party in unleashing hundreds of millions of prescription opioids, the “firewall” in mitigating the now defense asserted, non-existent opioid crisis.
The writings on the opioid wall, there’s an opioid settlement coming and how much and who’s paying what are in the mix of trial strategies and theatrics, as the defense must justify the millions of dollars in billable hours they’ve charged Opioid Big Pharma clients for defending an undefendable decades long business strategy. Posturing, finger pointing and all manner of other “avoid responsibility for the deaths of hundreds of thousands of US citizens” is the game and probably a very bad strategic move for the defense, as judges are generally not movced by rhetorical conjecture and wordplay in a courtroom. The defense roadblock is hard cold facts and data that will show, that as the opioid crisis evolved under Opioid Big Pharma marketing and pill distribution in the US marketplace, corporate earnings and profits skyrocketed, read “increased exec bonuses” to levels never imagined or forecast in earning statements.
The facts are simple, low population states such as Oklahoma and West Virginia received hundreds of millions of prescription opioids that started with the manufacturers and ended up in the hands of US consumers, based on aggressive opioid marketing campaigns that were designed and approved in the same corporate boardrooms that are now offering that the “opioid crisis” never occurred. There were never catastrophic increases in medical conditions or a need for increased opioid prescribing practices, other than “more pills in the marketplace equals more bonuses and corporate earnings” which is the Big pharma ultimate goal in the business side of pharmaceutical drug marketing. Selling more pills means we make more money, it’s Business 101, only Opioid Big Pharma failed to follow the ethical guidelines or the federal and state mandated compliance requirements for manufacture and sale of controlled substances.
The fact that California and the counties at trial are high population high density municipalities where the flood of opioids may have been less noticeable and more likely to have been absorbed into the consumer business model of a high population state like California makes the opioid crisis impact no less viable, it just took a little longer to get on the radar.
PROFITS BEFORE PATIENTS
Now more than ever with defense claiming there is no opioid crisis beyond that the hundreds of thousands of overdose deaths, economic impact to families and children and the catastrophic addiction needs currently in the United states only goes to show that opioid big pharma has continued with the back office mantra of profits before patients.
How can defense counsel state that internal corporate governance and correlating federal and state controlled substance monitoring and compliance guidelines , if followed would clearly show catastrophic increases in opioid prescriptions, sales and distribution requests all combining into the perfect storm of profits before patients.
What Trial Counsel Are Saying
Plaintiffs’ counsel, Fidelma Fitzpatrick, told Orange County Superior Court Judge Peter Wilson that the case was about the companies’ “deadly legacy” of promoting opioid painkillers to treat chronic pain, resulting in a “mountain” of addictive pills flooding the state and country.
“The evidence will show each of these companies, all of them, knew what would happen: that their opioids would cause the crushing burden of addiction, overdose and death that California and its people have experienced,” she said.
Defense lawyers countered that their drugs were a small part of the overall opioid market, that doctors were warned of their risks and that the counties could not prove they caused the health crisis.
“You won’t hear from a single doctor who was ever misled,” Collie James, Teva’s lawyer.
Mike Yoder, J&J’s lawyer, said its painkillers, which it no longer markets, were rarely abused. “They did not cause any opioid crisis, and they did not cause any public nuisance,” he said.
John Hueston, Endo’s lawyer, said the California communities were litigating over a handful of “innocuous statements” the U.S. Food and Drug Administration approved.
“That’s game over,” he said. “Under the law, whatever the FDA says was gospel.”
To watch the full Orange County Opioid Trial live via masstortnews.live streaming portal. Follow this link:
West Virginia MDL Bellwether-Trial No. 2
Opioid distributors lost recent attempts to end the May 3, 20201 start date of the next Opioid MDL 2804 bellwether trial when they claimed that that the “public nuisance” claim anchoring the case doesn’t actually apply, in front of West Virginia federal judge David A. Faber, who denied the defense request.
West Virginia Opioid Docket: City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, in the U.S. District Court for the Southern District of West Virginia.
Three major opioid wholesale distributors, who ship opioids from manufacturers to pharmacies failed in their pre-trial strategy when they told U.S. District Judge David Faber that West Virginia’s Cabell County and the county seat of Huntington, left themselves without a viable case when they chose to forsake all legal theories except the claim that the flood of opioids is a public nuisance. Judge Faber disagreed, and the May 3, 20201 trial start date if confirmed.
States and municipalities have increasingly sought to deploy the nuisance theory over the course of the opioid litigation, and it has become a subject of debate. The defense assert the theory is very narrow, applying to other things like pollution, noise, smells, uncontrolled fires, or hard-to-control diseases like smallpox, and expanding it to opioid cases is not applicable.
NAS Reference By Plaintiff’s Counsel
“The effects of the opioid epidemic are far-reaching throughout the community,” attorney Anthony Majestro said for the plaintiffs. Fetuses can be exposed to opioids in utero, and children whose parents are addicted take their trauma to school, interfering with their own education and others’, he said. “The opioid effect, like air pollution, like noise, is not limited to those directly impacted,” Majestro said. The Neonatal Abstinence Syndrome “NAS Babies” is a distinct and often overlooked tragedy of the opioid crisis, where thousnads of children have lingering mediacl issues from opioid use during pregnancy.
Majestro also suggested that public entities “seeking to enforce the public’s rights” may have the ability to use the public nuisance argument for opioids even if private parties with private causes of action do not.
Defense also claimed and argued the issue of proximate cause, with the distributors arguing that they were simply too remote from the harms that befell others to bear responsibility. Pharmacies, doctors and illegal drug dealers all came in after the distributors in the causal chain. Of not, is this defense this assertion in West Virginia was made in March hearings and early 20201 legal filings, and now formally asserted as part of the defense arguments in the ongoing Orange County, California opioid trial in front of Judge Wilson.
West Virginia is officially recognized as ground zero of the opioid crisis and the defense claims by the distributors to avoid responsibility for flooding the state with over 900 hundred million opioid pills is simply not viable at this point.
One drug company shipped over 3 million prescription opioids to a single pharmacy in a tiny West Virginia town in the span of just 10 months, according to congressional reports. McKesson Corp. supplied almost 10,000 hydrocodone pills daily to one now-closed pharmacy in Kermit, a town with only 400 residents. The pills were reportedly supplied even after the pharmacy was flagged for “suspect pill orders” in 2007. A formal report from the House Energy and Commerce Committee also concluded that McKesson and other drug distributors, like Cardinal Health and AmerisourceBergen, were shipping an “inordinate” number of pills to West Virginia. The three distributors reportedly sent a total of “900 million hydrocodone and oxycodone pills” between 2005 and 2016, a period in which thousands of West Virginians fatally overdosed on prescription opioids.
How any defendant can overcome those numbers and proclaim that others are responsible is not only laughable, it would seem to border on improper legal guidance, as the potentially catastrophic trial verdict amounts would seem to preclude a law firms for offering guidance to their clients, other than let’s settle and move on.
A trial verdict in excess of $10 billion would be a conservative estimate, if there is an actual value placed on the thousands of lives lost to residents of Huntington, WV and Cabell County.
Huntington is represented by Anne Kearse, Joseph Rice, Linda Singer and David Ackerman of Motley Rice LLC, and Charles “Rusty” Webb of Webb Law Centre PLLC.
Cabell County is represented by Paul Farrell Jr. of Farrell Law, Anthony Majestro of Powell & Majestro PLLC, and Michael Woelfel of Woelfel & Woelfel LLP.
The cases are City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, in the U.S. District Court for the Southern District of West Virginia.
The MDL In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.
New York Opioid Trial – Trial No. 3
In re Opioid Litigation, New York Supreme Court, Suffolk County, No. 400000-2017.
For the counties: Paul Hanly of Simmons Hanly Conroy and Paul Napoli of Napoli Shkolnik
For New York: David Nachman of the New York Office of Attorney General
Suffolk County Justice Jerry Garguilo has set the third trial of upcoming series of opioid trials for a start in early June where the defendants, including Johnson & Johnson and McKesson Corp have hidden behind Covid concerns and other delay tactic to prevent the trail from proceeding. One primary area of defense concern may be plaintiff counsel Hunter Shkolnik of Napoli Shkolnik, who was trial counsel in the first Opiod MDL 2804 federal bellwether trial in Cleveland, Ohio that settled on the morning of the trial start date for $270 million and is now lead counsel in the Suffolk County docket.
Hunter Shkolnik offered this comment “The Chief Judge has directed all court employees back to work and Judge Gargiulo has made clear this trial is going forward, we are ready to lay the case out for the world to see, these defendants addicted the people of New York with reckless abandon.”
Federal Opioid MDL 2804 court link, Judge Pollster USDC ND Ohio: https://www.ohnd.uscourts.gov/
Federal Opioid MDL 2804 court link, Judge Pollster USDC ND Ohio: https://www.ohnd.uscourts.gov/mdl-2804
The New York claims are among more than 3,400 lawsuits nationally against drug companies over the epidemic. Many of the lawsuits, brought by state and local governments, are consolidated before MDL Judge Polster in Cleveland, OH.
These lawsuits accuse the drug industry as a whole, including J&J, Teva Pharmaceutical Industries Ltd and Allergan of deceptively marketing opioids and the distributors McKesson, AmerisourceBergen and Cardinal Health of ignoring red flags indicating the painkillers were being diverted for improper uses. They all have denied wrongdoing yet have all settled opioid litigation claims with the State of West Virginia over the last 5 years as a strategic exit strategy.
There is ongoing discussion of the negotiations of a 2019 referenced $26 billion in settlements with distributors Cardinal Health Inc, McKesson Corp and AmerisourceBergen Corp and drugmaker Johnson & Johnson.
Lawyers for the plaintiffs have said that they hope to use the money to help communities nationally address the fallout of an opioid addiction epidemic that according to U.S. government data resulted in 450,000 overdose deaths from 1999 to 2018.
Paul Napoli, a lawyer for New York’s Nassau County at Napoli Shkolnik, said the setting of a trial date was “instrumental in restarting a dialog with the defendants that has been all but quite for the past year.”
“There’s certainly a pandemic, a crisis, that we hope will be behind us sooner than later,” he said. “But as the court may or may not be aware, the opioid deaths have skyrocketed over last year of the pandemic.”
Donna Welch, currently at trial in Orange County, a Kirkland & Ellis lawyer for Allergan, said the defendants recognized that a New York trial would take place this year, but she continued the Covid enabled trial avoidance strategy, arguing that a June trial is “not realistic” given current projections for when people could be vaccinated.
Delaying the trial, she said, “is not going to have people running away here or elsewhere on settlement.” Now that we see that Ms. Welch is fully up and running as trial counsel in the ongoing April 20201 Orange and LA County opioid trial, it would seem her prior claims of Covid as a trial block were just simple posturing for the purposes of posturing.
BEHIND THE DEFENSE SCENES IN OPIOID LITIGATION
Insurers escaped opioid coverage for lawsuits filed by California counties. On November 6, 2017 California’s Court of Appeals, Fourth Appellate District, ruled that Travelers Property Casualty does not have a duty to defend or indemnify Watson Pharmaceuticals (Activis, Inc), in a long running opioid related lawsuit based in Orange County Superior Court, as well as a second opioid related suit in Chicago.
TRAVELERS FILES DECLARATORY COMPLAINT
Watson Pharmaceuticals aka Activis, Inc., along with several other opioid manufacturers, were sued by two California counties and the city of Chicago in 2014. The claimants were seeking redress for costs related to the opioid epidemic in their respective communities. Travelers denied Watson’s demand to pay for its defense and subsequently brought a lawsuit against the drug company. Travelers filed a Complaint for Declaratory Judgment requesting the court declare that insurance coverage or indemnification of Watson-Activis under policies issued to Watson.
The California Court of Appeal detailed in its 31-page ruling that the policy covers damages for bodily injuries caused by an accident, and that the actions of Watson-Activis were intentional and not subject to policy coverage.
OPINION CLEARLY DENIES COVERAGE
“The California action and the Chicago action do not create a potential liability for an accident because they are based, and can only be read as being based, on the deliberate and intentional conduct of Watson that produced injuries—including a resurgence in heroin use that were neither unexpected nor unforeseen,” Justice Richard Fybel wrote in the ruling.
WATSON CONDUCT IS EXCLUDED
“All of the injuries arose out of Watson’s products or the alleged statements and misrepresentations made about those products, and therefore fall within the product exclusions clause of the policies,” Fybel added.
“The takeaway is that the opioid crisis has gone into the realm of whether there is insurance coverage to pay for some of the costs being incurred by public entities,” commented Larry Golub, a lawyer and partner with Hinshaw & Culbertson who is unattached to the case.
“I think there is a potential for more cases,” Golub told Connecticut Law Tribune. “Big bucks are being spent to deal with the opioids crisis.”
This is the second time Travelers has won a ruling against Watson. In August 2016, the US Court of Appeals for the Eleventh Circuit ruled that the insurer did not have to defend Anda, a division of Watson Pharmaceuticals in a West Virginia federal court case over the “prescription drug abuse” crisis in that state. The court based its decision on the exclusions of the company’s insurance policy.
OPINION EXCERPT IN TRAVELERS vs. ANDA-WATSON
Background: Anda is a wholesale pharmaceutical distributor. The State of West Virginia has sued Anda and other pharmaceutical companies in West Virginia state court, requesting an injunction against their distribution practices and seeking compensation for expenses the state alleges it has incurred as a result of the proliferation of “Pill Mills” and the attendant “opioid epidemic.” Further stating “The judgment of the district court is affirmed, and the liability policy coverage for Anda and Watson in the West Virginia opioid suit is denied.”
Will denial of insurance coverage become a trend in the exploding number of lawsuits filed against opioid manufactures, distributors and will Big Pharma finally be forced to admit the wholesale opioid abuse designed in the boardroom and placed into American commerce by any means necessary over the last 20+ years?
Stay tuned to Mass Tort News and masstortnews.live for ongoing updates and information on the opioid trials.
Further reference materials on Purdue Pharma and Sackler Family: via masstortnews.org
See Richard Sackler’s Unsealed Deposition Transcript in Kentucky vs. Purdue Pharma (2015).
Disclaimer: Certain excerpts and comments contained within this article may have been taken from prior published public media releases.