The Opioid Crisis: The Bellwether Trial Settlement

Before parties reached a $260 million settlement, litigation was set to begin this month to determine whether drug companies are responsible for the opioid crisis that reached Cuyahoga County and Summit County of Ohio. The lawsuits brought by these Ohio counties are just two of the over 2,000 pending lawsuits in response to the opioid crisis. Since 1999, the opioid crisis has resulted in over 200,000 overdose deaths in the United States. The Court consolidated pending opioid-related lawsuits into what is now referred to as the National Prescription Opiate Litigation.

The bellwether trial which focuses on the two Ohio county lawsuits was intended to try a widely contested issue and typically is representative of the other cases. This trial would likely shape how courts conduct those other pending opioid-related cases.

Before pharmaceutical companies began marketing opioid treatments for a wider range of uses, opioid medication was only prescribed in cases of extreme need.  In the late 1990s, the pills started being prescribed at higher rates and their highly addictive nature soon showed. The Drug Enforcement Agency’s Automation of Reports and Consolidated Orders System (ARCOS) nationwide analysis illustrates the magnitude of the prescription pain pills supplied to states and counties. For example, one West Virginia county was supplied with 38,269,630 pills, or enough prescription pain pills to provide each person 203 pills annually between 2006 and 2012.

Lawsuits against drug companies accuse drug manufacturers of marketing their opioid treatments in a way that failed to adequately disclose the risk of addiction and overdose. In the suit that just settled, the Ohio Counties accused defendant distributors of failing to properly  “detect, probe or report suspicious orders.” Defendants denied these allegations and asserted that they complied with federal regulations to provide medicine to people suffering from painful conditions, that doctors who over-prescribed the opioids are to blame, and that the DEA had the information necessary to stop the opioid pills from entering the black market.

Litigation did not occur as planned for the Ohio county case because on the morning of the trial start date, drug maker Teva Pharmaceuticals and drug distributors McKesson, Cardinal Health, and AmerisourceBergen agreed to a $260 million settlement. Other parties to a similar settlement included companies such as Johnson & Johnson, Mallinckrodt, and Endo International and Allergan. Johnson & Johnson reached a $20.4 million settlement, Mallinckrodt reached a $30 million settlement, and Endo International reached a $10 million settlement with up to an additional $1 million worth of medications provided to the counties. Despite settling, none of the listed defendants admitted liability.

As of late October, Walgreens has not settled and will likely go to trial within the next six months. It argues that it is different from the defendants who already settled because it merely fills prescriptions and never manufactured, promoted, or prescribed any opioid medications.

Today, the Centers for Disease Control and Prevention estimates that the opioid crisis has a $78.5 billion economic burden annually across the United States alone. The goal of this Ohio case was to provide funding for what is expected to be a decades-long recovery process. There is already discussion regarding the distribution of the settlement money. While reaching settlements with these Ohio counties avoided litigating this trial, the settlements do not resolve the other 2,000 pending cases.