DALLAS – Because Purdue Pharma “made billions” selling opioids, “why the heck should it not pay for creating this epidemic” – that was the rhetorical question offered by attorney Jay Henderson, who represents numerous Texas counties currently engrossed in opioid litigation, at a recent conference.
Normally sitting on opposite sides of the courtroom, Mark Cheffo, a Purdue defense attorney, and Jeffrey Simon, one of Texas’ most notable trial lawyers, sat side-by-side on June 28 to help host The Opioid Litigation Conference in Dallas.
The gathering featured an array of speakers, a list of individuals that ranged from opioid attorneys to medical professionals and insurance specialists.
Simon
From legal theories to medical perspectives, expert panelists shared insights into the opioid health crisis and the subsequent mass litigation against drug manufactures and distributors that has followed as a result.
One speaker, Henderson, a Fibich Law attorney, was particularly expressive in his views, telling those in attendance that he believed the opioid epidemic surpasses the “the AIDS health crisis” and that drug makers were intentional in their conduct in helping to bring about the current opioid crisis era.
Relying on the mass tort public nuisance model (tobacco, gun, pollution, lead paint and alcohol litigation), numerous states and hundreds of municipalities have filed suit in the past year, alleging drug makers deceptively oversold the benefits of opioids while understating the risks.
Governmental entities seek to recover damages related to the costs for healthcare, drug treatment and even law enforcement, plus funds to help launch drug awareness programs.
“The damages are in the billions, if not hundreds of billions,” Henderson said. “Purdue has made billions off of OxyContin. Why the heck should it not pay for creating this epidemic?”
However, Purdue’s attorney, Cheffo, a lawyer with the New York firm Dechert LLP, believes the courts will ultimately reject the opioid litigation, just as they have done with many public nuisance claims in the past.
“Public nuisance claims are sparse … this is a Hail Mary,” Cheffo said. “Nuisance claims on guns have been widely rejected, as have alcohol to minors and lead paint.
“If the claims were clever, you would actually see them.”
In the first few minutes of the conference, Cheffo made sure to tell the audience that even if all the opioid litigation were resolved, there would still be a “serious societal problem with drug usage.”
During the conference, Mark Pifko, a Baron & Budd attorney, presented statistics from the CDC showing that on average 115 people die from opioids every day.
To hold drug manufacturers liable, lawyers are employing the marketing theory, asserting companies, like Purdue, had knowledge on the dangers of opioids but concealed the information.
Under the supply chain theory, drug distributors supposedly had a duty to report and halt shipments of addictive painkillers.
“There’s no reason 3 million pills should go to a community of 3,000 people,” Pifko said.
Peter Kelso, who specializes in identifying emerging litigation trends, told the audience “Walgreens has some responsibility in this as well” since that’s where people go to fill their prescriptions.
Kelso believes opioid litigation will help identity the culpable parties and hopefully fund awareness programs.
“Litigation will only get you so far,” Kelso said. “Tobacco suits didn’t stop tobacco.”
Christina Marinakis, director of jury research at Litigation Insights, told the audience her firm’s research shows half of potential jurors believe big pharma wanted people to get addicted to painkillers in order to make more money.
According to Dr. Anna Lembke, a Stanford professor and speaker at the conference, the root of opioid epidemic can be traced back to doctors overprescribing.
Lembke said 75 percent of heroin users started with opioids.
Marinakis’ research further showed that the majority of potential jurors believe responsibility for opioid addiction rests with the individual while also believing that it’s way too easy to get addicted.
She finished her presentation by saying those with a greater understanding of science tend to side with the defendants.
Geralyn Datz, a health and pain psychologist with Southern Behavioral Medicine, told the audience America is facing more than just an opioid crisis.
“There’s also a mental health crisis and chronic pain crisis,” Datz said. “Opioids should have never become the cornerstone of pain treatment.”
Datz believes many Americans would rather simply take a pill than put in the effort required for proper pain management, which includes rehabilitation, exercise and brain training.
She also believes that opioid usage can’t be pulled back either, as people have become too dependent on painkillers.
In Texas, an opioid MDL was created in mid-June.
Settlement talks are proceeding for more than 250 opioid lawsuits that are part of a federal MDL in Ohio.