As local governments across Maryland combat the soaring cost of the opioid crisis, they’ve added a new strategy to their fight: litigation.
Four Maryland counties — Anne Arundel, Cecil, Montgomery and Prince George’s — and Baltimore city have filed suit against drug manufacturers in state or federal court since early January, with at least two additional counties contemplating legal action.
The goal of the lawsuits is not only to seek damages from prescription drug manufacturers and distributors but also to change how drug companies advertise and distribute their products.
“One of the things that we’re looking to do is be part of the national conversation on this and ultimately the resolution,” said John P. Markovs, deputy county attorney for Montgomery County, which filed suit in federal court Feb. 7. “The county wants to have a seat at the table to cause change.”
Baltimore City Solicitor Andre M. Davis said the lawsuit sends a message to Baltimore residents where, according to the complaint, they are more likely to die of an overdose than nearly any city in the country and 90 percent of those deaths involve opioids.
“I hope the citizens of Baltimore appreciate that the city takes seriously our responsibility to see to the health and welfare of all the citizens of Baltimore and when wrongs are committed against the city, it has the means and the ability to seek recompense,” he said.
The volume of lawsuits filed nationwide is increasing rapidly, according to Aelish Baig, a San Francisco-based attorney whose firm is representing jurisdictions nationwide, including Montgomery County and Baltimore County, which is preparing to file suit.
“The cities and the counties and the states, I think, recognize that it’s not until enough pressure is exerted on (the defendants), we’re not going to be able to abate the crisis,” she said.
Baltimore County Executive Kevin Kamenetz called the misleading and false statements made by drug companies the “leading cause of the nation’s health crisis.”
“I think the filing of this lawsuit has the effect of forcing these manufacturers and distributors to rethink their methodology,” he said. “It certainly brought big tobacco to its knees.”
The state has also been investigating the drug companies since 2016, according to Attorney General Brian E. Frosh, and could file an administrative or circuit court action to attempt to compensate the state and its citizens.
While Frosh agreed that the large-scale litigation is similar to the lawsuits against cigarette manufacturers, drug companies do not have the same volume of resources to pay out in any national settlement.
“I frankly think it’s going to be very difficult to obtain judgments and settlements and collect on them that will compensate for the damage that’s been done by the opioid epidemic,” he said. “The costs of treating folks that are addicted is extremely high and I don’t think they have the resources to make everyone in the country whole.”
While Gov. Larry Hogan directed Frosh to sue manufacturers earlier this year, the attorney general in an interview did not disclose a timeline for a lawsuit but said he is participating in a multi-state investigation with dozens of other attorneys general which allows for them to send joint requests and for drug companies to respond to one hub.
“You get to a point where you have everything that you hope to have and you know there’s more information out there, but you reach point where you have a center of gravity and it’s time to move,” he said.
‘Tobacco litigation redux’
The lawsuits generally allege the drug companies knowingly mislead doctors and consumers about the addictive quality of prescription opioids and manufactured a market by overstating their benefits for chronic pain treatment.
In 2007, Purdue Pharma L.P. and three of its former executives pleaded guilty to federal criminal charges stemming from deceptive sales and marketing of OxyContin, according to Baltimore’s complaint. By that point, the “sea change in prescribing” was complete with prescription opioid sales more than tripled.
The defendant companies have denied the allegations in all of the lawsuits and stress their commitment to the appropriate use of their products and combating the opioid epidemic.
Gregory Dolin, a physician and co-director of the University of Baltimore School of Law Center for Medicine and the Law, said that, like the tobacco litigation in the 1990s, advertising and marketing guidelines have the potential to impact the industry. The litigation made cigarette manufacturers unpopular on the national stage and the strict rules for advertising and required disclosures were the “death knell” for their public image.
“It’s less the money itself, even though it was a really large amount, it was those provisions,” Dolin said.
Calling the lawsuits “tobacco litigation redux,” Dolin said that, like cigarette companies, manufacturers of prescription drugs “need to be careful with how they promote their drugs and they need to be careful with what they say.”
But a factor distinguishing the opioid litigation from tobacco lawsuits, he noted, is the medicines do have benefits when prescribed and used safely.
“There are some drugs that are just dangerous drugs but they’re necessary,” he said. “It’s understandable that some drugs have a good and a bad thing so just because companies are marketing opioids for pain treatment it’s not necessarily a bad thing.”
Frosh said opioids are important medicines and ease suffering for many but are being marketed and used for broader purposes.
“On the one hand, you want the people that need it to get it but you need to protect folks who don’t need it from getting it,” he said.
Doctors also need to be assured they won’t be “raked over the coals for prescribing medicine that people need,” Frosh added.
Part of the lawsuits’ allegations are that the drug companies encouraged doctors to prescribe opioids to treat more ailments and for longer periods rather than for short-term acute pain relief, which increased the risk of addiction and overdose, according to Baig, a partner at Robbins Geller Rudman & Dowd LLP.
“Because of this massive marketing scheme that began, really, in the late ’90s and continued for a couple of decades, what you see is there was a very dramatic shift in the acceptance of opioids and the use of opioids,” she said. “Once people start using opioids on a daily basis, the dangers and the risks of addiction and overdose just soar.”
Dolin added that if drug companies want to be good corporate citizens, they should already be making sure they don’t mislead doctors and looking to minimize the addictive potential of their drugs.
The pending litigation may already be affecting the drug companies’ behavior, according to Baig: Purdue Pharma Inc. announced plans recently to shift marketing strategies, reduce its sales force and cease direct marketing to doctors.
The timing of the new policy is not a coincidence, Baig said.
“It’s a great first step and I think they only did it because so much pressure is being exerted through this litigation,” she said. “They should have done that a long time ago.”