Somerset Co. files first opioid suit post-Purdue bankruptcy

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Somerset County has joined the cavalcade of county and local governments in Maryland that are suing over the opioid crisis, but it is the first Maryland jurisdiction to do so without naming Purdue Pharma, the OxyContin manufacturer that has become the face of the litigation.

In a federal complaint filed last week, the county named companies such as Cephalon Inc., Endo Health Solutions Inc. and Janssen Pharmaceuticals Inc., all of which are co-defendants with Purdue in thousands of lawsuits across the country. The lawsuit also names distributors and pharmacies.

Somerset is just one of many jurisdictions facing the new landscape of opioid litigation after Purdue filed for bankruptcy earlier this month as part of a tentative settlement with half of the state attorneys general and at least 1,000 local governments.

Jonathan P. Novak, one of the attorneys representing Somerset as well as other Maryland counties, said the facts that have been laid out in the lawsuits “focused very much on Purdue” as the chief bad actor.

In pending lawsuits, motions are being filed to sever Purdue. New suits may choose not to name the company, which will now be tied up in bankruptcy court, and instead focus on the conduct of the other defendants.

“The landscape’s looking different without Purdue, but there’s so many bad acts to go around, it’s not like taking them out is going to have a big impact in that regard,” said Novak, of Fears Nachawati PLLC in Dallas. “And I think people are still angry and they still want these cases to move forward.”

Somerset’s complaint alleges the defendants “changed doctors’ views regarding opioids through defective marketing schemes” and “spread false and deceptive statements about the risks and benefits of long-term opioid use.”

A pamphlet promoting Endo’s Opana ER implied the drug would provide long-term relief and improved function in patients with physically demanding jobs, according to the complaint. These representations were halted due to a settlement with the state of New York.

Endo and Janssen are also accused of using “front groups” — organizations appearing unbiased and independent that promoted opioids for chronic pain treatment — and of spending millions to fund their work, according to the complaint.

Though Purdue may have been the first to use some of the techniques and strategies complained of, Novak said fellow manufacturers followed suit.

“The documents tend to show, or at least we believe they’re going to prove, (that) even if Purdue came up with the crime, everyone else was willing participants and bought in,” he said. “A lot of these, it’s Purdue did this and was joined by Endo and Janssen or whatever. Very early on, the other manufacturers adopted the same strategies and even worked together with some of the other groups.”

An Oklahoma judge found Johnson & Johnson and its subsidiaries liable in August for fueling the state’s opioid crisis and ordered the company to pay $572 million. Novak said that ruling gave plaintiffs more faith that the litigation can continue without Purdue.

“Those tidbits are still in there,” he said. “There are still very good stories to tell in terms of expressing to a jury what these defendants did.”

Moving forward

Plaintiffs and defendants will both be watching how the Purdue bankruptcy plays out and analyzing its potential impact on future settlements.

“What we’re already seeing, in fact, is everyone is watching this to see what mistakes are made, what works, how the next couple of years are going to go,” Novak said.

Though manufacturers have been the focus of the lawsuits so far, companies that distributed drugs, as well as pharmacies that dispensed them and doctors that prescribed them, have also found themselves named.

Novak said the potential liability of distributors and pharmacies is tied to their state and federal obligations to monitor and report suspicious orders and to flag areas experiencing a high volume of prescriptions. The goal is to hold the entire supply chain accountable, he said.

The distributors allegedly failed to exercise ordinary care in distributing opioids and “intentionally failed to prevent or reduce the distribution of opioids, or to report any increases in the sale of opioids, so that they could increase profits and receive rebates or kick-backs from Manufacturing Defendants,” according to the complaint.

Some pharmacies have been identified in their role as distributors, with centers that ship opioids to individual pharmacies, but Novak said a new strategy is to bring claims against them as pharmacies, calling them the last line of defense to flag suspicious prescriptions.

“There’s still a long road ahead,” Novak said. “Any county or city should get on board sooner rather than later because every defendant that is dismissed or files for bankruptcy or settles before a county has filed suit is one less resource that’s going to come back to that county.”