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Commissioners Approve Pursuing Next Steps toward Suing Opioid Manufacturers


Commissioner Robert Pressley echoed, “One thing that really disturbs me is when someone thinks about cost over saving a life, and we’ve been talking about this a long time. This was just not something brought up this week. It’s been discussed how we’re going to handle it, when we’re going to handle it, and the time is here now. So, anybody that thinks the cost is gonna overdo what lives we can save here, I really feel sorry for him.”

They were berating challenges to a “Resolution Supporting Legal Action Regarding the Opioid Crisis” that had not been voiced in the meeting. The closest anybody came was a plea from citizen Jerry Rice. After passionately entreating for more investment in counseling and therapy for school-aged kids instead of medicating them, he said, “We need to fix the problem, not just throw litigation at it.”

Hillary Brown of the Steady Collective Needle Exchange had a similar concern. She said if the county was going to cut the supply of opioids, it needed to spend money on “harm reduction and treatment on-demand.”

While the commissioners were slamming constituents for questioning the throwing of government money at a problem as the most humane option available, the commissioners assured everyone they did not anticipate spending any taxpayer resources. Commissioner Mike Fryar said, “It’s time for us to step up and go ahead and put it out to these law firms: Who wants to step forward to be able to help Buncombe County?”

Chair Brownie Newman clarified, “The step that we’re taking tonight is not to file a lawsuit, but we believe that we have enough information indicating that there is some real accountability that needs to be found around this matter, and so we’re going to take the next steps to go through a process to consider how we might further pursue that.”

The resolution itself only mentioned “recovery” three times, and that was in terms of cost recovery. It gave statistics like in 2016, enough prescription opioid doses were dispensed to Buncombe County residents, that if they were evenly distributed, everybody would have gotten 67. And that didn’t include the consumption of street drugs. It gave projections like, “The fiscal impact to Buncombe County related to health care costs, jail administration and incarceration, emergency management services, child welfare, and public assistance will likely exceed $19 million in federal, state, and county funding.” The resolution then recommended joining any of several class-action lawsuits afoot, either independently or with the state, whose current investigation of alleged illegal marketing by opioid manufacturers the resolution also supported.

Al Whitesides assured, and Jasmine Beach-Ferrara concurred, this was only one arrow in the commissioners’ quiver. The opioid epidemic is a multi-dimensional knot that has been tangling up for thirty years.

Elsewhere in the Country –

At least twenty-five US municipal and county entities have filed lawsuits against businesses involved in the licit opioid supply chain this year. States launching suits include Missouri, Mississippi, New Hampshire, and South Carolina. Other states are interviewing law firms; Delaware being among those who have issued Requests for Proposals. Defendants include McKesson Corporation, Cardinal Health, AmerisourceBergen, Purdue Pharma, Janssen Pharmaceuticals, Endo International, Teva Pharmaceutical, Allergan, Watson Pharmaceuticals, and Covidien.

Companionably, firms are actively soliciting clientele to sue Big Pharma. The former attorneys general of Arizona and Mississippi, Grant Woods and Mike Moore, respectively, are recruiting states to join a class-action lawsuit; while other firms like, Baron & Budd, and Levin Papantonio are inviting government bodies to learn more about what they can do. The firms are not seeking individual clients, because, pejoratively, addicts by definition admit to illegal activity. Defendants, on the other hand, have charged governmental use of private, for-profit law firms in the pursuit of large-scale damages flies in the face of due process.

Cities, states, counties, and even one Native American nation are demanding restitution for, in addition to the items listed above; costs of purchasing opioids and their antidotes, hiring more criminal justice personnel from police officers to investigators to prosecutors, property damaged by people desperate to avoid withdrawal, and building and maintaining treatment facilities. Individual plaintiffs are seeking reimbursement for ill-advised medical expenses, pain and suffering, drug rehabilitation, lost wages, and funeral expenses.

The Buncombe County Commissioners’ emphatic condemnation of any discussion of costs aside, suing Big Pharma is sure to boomerang on social services. Large pharmaceutical manufacturers with deep pockets also have serious legal teams who aren’t running pro-bono. While Americans are complaining about unaffordable employer-provided insurance, insurance companies are exiting the Obamacare exchanges, and hospitals are consolidating to stay viable – diverting pharmaceutical dollars to overhead is not mitigating escalating healthcare costs. Costs of assembling powerful legal cases will be passed on to the consumer one way or another, perhaps even through unadvised aggressive marketing of other medicines. Big Pharma, incidentally, spends on average over $88 million a year lobbying state and federal officials to protect their interests in the $13 billion licit opioid industry.

Then, manufacturers are not deemed the best targets for these suits. In other litigation, they have shifted blame to the FDA for approving the safety and labeling of opioids. While some lawsuits have been successful, they became more difficult after a 2007 case in which Purdue Pharma, the manufacturer of OxyContin, pled guilty. It has since claimed to be part of the solution to the opioid epidemic by paying $600 million in damages, furnishing clearer warnings, and reformulating the drug to make it less addictive. Manufacturers also tend to push blame on physicians for improper prescription. As an aside, governmental capping of prescribed OxyContin dosages is often blamed for driving chronic pain sufferers who were holding down good jobs with heavier doses, to the street to buy heroin; fentanyl, which is 50-100 times stronger; or carfentanyl, which is so deadly multiple administrations of naloxone, the antidote, cannot resuscitate victims.

Purdue has been sued hundreds of times in the last twenty years by plaintiffs seeking damages for OxyContin use. Other manufacturers and distributors have been sued and have settled for several millions of dollars, those cases usually involving failure to report suspicious orders to the US Drug Enforcement Agency. More colorful suits currently in process include one by the City of Everett, Washington, charging Purdue for failing to report to law enforcement the crime ring it knew was trafficking drugs to that city from Los Angeles. West Virginia sued several wholesalers who did nothing to stop pill mills from handing out pre-signed, cash-only prescriptions, which were then taken to the local pharmacy where cars with out-of-state license plates waited in long lines.

Class-action strategies currently pursued have been compared to those leading to the $206 billion collectively promised 46 states in the 1998 settlement with tobacco companies. It stands to reason Buncombe County wouldn’t want to be left out in the cold. But the tobacco case was stronger. Tobacco was not regulated by the FDA at the time, and it has no FDA-approved medicinal value when used appropriately; but many people living with chronic pain become fully-functional with proper opioid use. While enough plaintiffs rallied to the cause, pooling resources and resolve to exhaust the legal system and force a settlement, several states are using their proceeds as a slush fund instead of investing in prevention and healing. What’s more, the history of government bodies agreeing to settle with Big Pharma in opioid-related suits sets precedent and gives the appearance plaintiffs believe their case is too weak to prevail.

Furthermore, lawsuits of this scale can drag out over years. The tobacco case took four years, and opioid manufacturers will draw things out as much as possible. An argument that has already been put forth to stay litigation is that the companies want time to complete, unobstructed, studies of the risks of long-term opioid use ordered by the FDA.

So, assuming the county will promptly pour any proceeds of the litigation into evidence-based therapies instead of capital improvements and staffing for government programs with increased capacity; what humane action can be taken immediately? Commissioner Joe Belcher noted people would die in Buncombe County before the board approves its next intervention. Constructively, Frank Castelblanco, a nurse at MAHEC, shared with the commissioners how that organization was retraining prescribers and presented them with a blister pack with Tylenol and Advil that was non-addictive and more effective than opioids.

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