The Association of Arkansas Counties has filed a federal lawsuit against several pharmaceutical companies to recoup money paid out of its health insurance fund for members' opioid prescriptions.
The suit alleges the manufacturers and distributors of the drugs embarked on an illegal marketing campaign to misrepresent the drugs' effects, leading to abuse and overprescription.
The same group of attorneys who filed the case filed another one with the same claims on behalf of the Arkansas Municipal League and its health benefit fund. While that lawsuit was voluntarily dismissed by the Municipal League for technical fixes this week, it will be refiled soon, attorneys said. An article in Friday's Arkansas Democrat-Gazette incorrectly stated the reason for the dismissal.
The lawsuits say the league's and association's insurance funds "have unnecessarily spent money on opioid prescriptions for chronic pain" and "spent tens of millions more on costs directly attributable to the flood of opioids defendants unleashed on the state, including costs for addiction treatment and the treatment of babies born addicted to opioids."
The groups are seeking damages to recoup the costs for excessive prescriptions and the resulting addiction and treatment costs.
The lawyer team representing the two government groups also plans to file lawsuits on behalf of individual cities and counties in Arkansas alleging unique damages for each in an effort to recoup losses the localities have suffered in responding to the nationwide opioid epidemic in their jurisdictions.
Arkansas has the second-highest opioid prescribing rate in the U.S., at more than 114 prescriptions for every 100 people, behind only Alabama, according to the U.S. Centers for Disease Control and Prevention. Opioid-related overdose deaths have increased over the past decade in the state, although exact figures are unclear.
Local governments have spent money responding to the increased hospital visits, 911 calls, crimes and jailing.
The lawsuits to be filed on behalf of Arkansas localities are similar to the roughly 100 others filed by towns, counties and states all cross the U.S.
This week's lawsuits are about the same issue and bring similar claims but are instead on behalf of the health benefit funds and workers' compensation trusts of the Association of Arkansas Counties and the Arkansas Municipal League.
"In addition to counties and cities and the state of Arkansas losing money, many insurance companies and self-insured funds have lost money," said Ernie Corey, an Alabama lawyer who specializes in multi-district litigation who has been retained as lead counsel to represent the organizations and localities in the suits.
Chris Villines, director of the Association of Arkansas Counties, said the group's claims on behalf of its insurance funds are completely different from damages cities and counties have encountered.
The team that has been retained to handle the opioid-related lawsuits include 13 attorneys from six firms or organizations. The firms are Birmingham, Ala.-based Cory Watson law firm; Little Rock-based Reddick Moss PLLC; Texarkana, Texas-based Wyly Rommel PLLC; Little Rock-based Rainwater, Holt and Sexton P.A.; as well as counsel for the Municipal League and Association of Arkansas Counties.
The overall claims in the two lawsuits filed on behalf of the insurance funds argue that opioid manufacturers use a marketing scheme to persuade doctors and patients that opioids can cure chronic pain, but don't disclose that a large amount of those patients are likely to become addicted to the drugs and suffer from long-term effects.
The lawsuits, like the others filed across the nation in recent years, allege that the manufacturers and distributors minimize the risks and overstate the benefits of the drugs. That, the lawsuits claim, has led to widespread overprescription and what government officials are calling the worst drug epidemic in U.S. history.
Defendants named in the Arkansas cases are: Purdue Pharma Inc., The Purdue Frederick Company, Cephalon Inc., Pharmaceuticals USA Inc., Janssen Pharmaceuticals Inc., Johnson & Johnson, Endo Health Solutions Inc., Watson Laboratories Inc., Actavis Pharma Inc., Actavis LLC, Amerisourcebergen Drug Corporation, Cardinal Health Inc. and McKesson Corporation.
Attorneys representing parties bringing claims against the pharmaceutical companies said the companies have borrowed a page from tobacco's playbook. Tobacco companies were successfully sued in the 1990s.
The Healthcare Distribution Alliance, which represents some of the pharmaceutical companies, released a statement Friday about national reporting on the opioid abuse epidemic, saying it was one-sided.
The alliance said many factors led to the epidemic, including the U.S. Drug Enforcement Administration's annual approval of increased production of opioids.
"Our members operate highly-regulated, diversified businesses and have responsibility for transporting all prescription medicines, including cancer treatments, specialty medicines, vaccines and other health products. Opioids are a small percentage -- roughly 1--2 percent -- of what our members deliver to licensed healthcare providers and pharmacies," the statement said.
"Further, distributors respond to demand in the market for medicines -- they don't create it," the statement said. "Expecting distributors to have unilaterally stemmed the flow of opioids -- a flow that increased yearly with the explicit oversight and approval of the DEA -- is a transparent attempt by former DEA officials to shift the blame for their own failed approach to regulation during the growth and peak of the epidemic."
There are currently hearings taking place before multi-district litigation judges to determine whether all of the federal lawsuits against about 70 drug companies should be grouped together. The next hearing is set for Jan. 9 in Cleveland.
Cory, the Alabama attorney who was retained by the Arkansas associations, said he will be at the hearing and hopes the judge will make some preliminary decisions on how the group litigation will be organized.
Cory and the other attorneys representing the Arkansas cities and counties think they've positioned themselves uniquely to have a seat at the table when it comes to trying the cases. The attorney team says it is the first ever to use the technique of collectively representing essentially every town and county in the state -- at least all that agree to sign on to the litigation -- in an effort to have a bigger voice.
If an attorney represented just one city in Arkansas, he would likely be overshadowed in the group litigation by bigger towns and states, the attorneys said.
The team has not yet decided whether it will file group litigation listing all of the plaintiffs or file individual lawsuits on behalf of each county and city in their respective circuit courts.
"The strategy absolutely has not changed. We are working out the venue as to whether we can pull all of them together in one large lawsuit or whether they have to be broken up by court. We are working through those issues right now," said Jerome Tapley, an attorney at the Cory Watson law firm.
Metro on 12/16/2017