National Opioid Litigation

BACKGROUND:

Greene, Ketchum, Farrell, Bailey & Tweel, LLP is a personal injury law firm in Huntington, Cabell County, WV.  Greene Ketchum’s hometown of Huntington has often been called the epicenter of the opioid epidemic and featured on shows like 60 minutes and Netflix’s Heroin (e).  Huntington’s plight has also been the center of several national publications including The New York Times and The Washington Post.

In early 2017, Greene Ketchum filed the nation’s first lawsuits in federal court against the wholesale distributors of opioids on behalf of six West Virginia counties (Cabell, Kanawha, Wayne, Boone, Fayette, and Logan).  Realizing the problem was bigger than just West Virginia, Greene Ketchum partner, Paul Farrell, Jr., went to work forming a “National Consortium” to fight the epidemic.  Today, the team tackling the opioid epidemic consists of Greene, Ketchum, Farrell, Bailey & Tweel LLP; Baron & Budd PC; Levin Papantonio; Hill, Peterson, Carper, Bee & Deitzler PLLC; McHugh Fuller; and Powell & Majestro PLLC.

THE OPIOID EPIDEMIC:

Manufacturers The opioid epidemic started with false and deceptive marketing and advertising by the manufacturers of prescription pain pills.  For example, Purdue, one of the largest manufacturers of narcotic painkillers in the nation, agreed to pay approximately $600 million in fines in 2007 as a result of its deceptive marketing regarding the addictive nature of the opioid painkiller OxyContin. In connection with their scheme, each manufacturer spent millions of dollars on promotional activities and materials that falsely deny or trivialize the risks of opioids while overstating the benefits of their use for chronic pain.  Opioids became the most prescribed class of drugs; they generated $11 billion in revenue for drug companies in 2014 alone. In an open letter to the nation’s physicians in 2016, the then-U.S. Surgeon General connected this “urgent health crisis” to “heavy marketing of opioids to doctors . . . [m]any of [whom] were even taught – incorrectly – that opioids are not addictive when prescribed for legitimate pain.”  This epidemic has resulted in a flood of prescription opioids available for illicit use or sale and a population of patients physically and psychologically dependent on them. And when those patients can no longer afford or legitimately obtain opioids, they often turn to the street to buy diverted prescription opioids and/or heroin.

Wholesale DistributorsThe wholesale distributors of opioids fueled the epidemic. Prescription opioids cannot get to pharmacies, doctors, hospitals, dealers or users without the wholesale distributors. Substantially all prescribed opioids must flow through the wholesale drug distributors because federal law requires that opioids be distributed through a closed system. Accordingly, the distributors are legally required to spot and report red flags in the distribution chain. McKesson, the largest drug distributor in the nation, was recently fined a record $150 million by the federal government for its blatant failure to report suspicious orders in violation of federal law. The wholesale distributors have wholly ignored their legal obligations. Instead of implementing controls to stop opioid abuse and alerting authorities to suspicious orders, the distributors have chosen to abuse their privileged position, lining their pockets by shipping massive quantities of drugs to distributors, pharmacies, and dispensaries without performing any checks – with devastating consequences to Americans.

OPIOID EPIDEMIC CONSEQUENCES:

Opioid AbuseOver the past 15 years, communities across our Nation have been devastated by increasing prescription and illicit opioid abuse, addiction, and overdose. According the Substance Abuse and Mental Health Services Administration (SAMHSA)’s National Survey on Drug Use and Health (NSDUH), in 2016, over 11 million Americans misused prescription opioids, nearly 1 million used heroin, and 2.1 million had an opioid use disorder due to prescription opioids or heroin. Over the past decade, the U.S. has experienced significant increases in rates of neonatal abstinence syndrome (NAS), hepatitis C infections, and opioid-related emergency department visits and hospitalizations. See National Institute of Drug Abuse, The Federal Response to the Opioid Crisis (October 05, 2017presented by Dr. Francis Collins, NIH Director and others Senate Committee on Health, Education, Labor & Pensions)

Overdose Deaths Continue to IncreaseDrug overdose deaths and opioid-involved deaths continue to increase in the United States. The majority of drug overdose deaths (more than six out of ten) involve an opioid. Since 1999, the number of overdose deaths involving opioids (including prescription opioids and heroin) quadrupled. From 2000 to 2015 more than half a million people died from drug overdoses. 91 Americans die every day from an opioid overdose.

We now know that overdoses from prescription opioids are a driving factor in the 15-year increase in opioid overdose deaths. The amount of prescription opioids sold to pharmacies, hospitals, and doctors’ offices nearly quadrupled from 1999 to 2010, yet there had not been an overall change in the amount of pain that Americans reported. Deaths from prescription opioids—drugs like oxycodone, hydrocodone, and methadone—have more than quadrupled since 1999. See Centers for Disease Control and Prevention

CostsAs a result of the manufacturers’ and whole distributors’ illegal conduct, significant damage has been done, and substantial resources are required to abate the opioid plague. The manufacturers’ and distributors’ violations of their statutory and common law duties have and will impose significant costs upon all of Virginia’s counties, including: (1) law enforcement and public safety relating to the opioid epidemic; (2) medical care, additional therapeutic and prescription drug purchases, and other treatments for patients suffering from opioid-related addiction or disease, including overdoses and deaths; (3) counseling and rehabilitation services; (4) treatment of infants born with opioid-related medical conditions; (5) welfare for children whose parents suffer from opioid-related disability or incapacitation; and (6) payments for illegally distributed opioids through government payor programs.

Using standard economic techniques, the Council of Economic Advisors, an agency within the Executive Office of the Presidency, estimates the cost of the opioid crisis in 2015 to be $504 billion, or 2.8 percent of GDP, once the lives lost due to opioid overdoses are accounted for. The CEA’s high estimate puts the cost of opioid misuse at $622.1 billion while the most conservative estimate suggests the cost is $293.9 billion. The CEA’s study included all opioid involved losses, not solely losses caused by prescription opioids. The new cost estimates include nonfatal opioid abuse, which totaled $72.3 billion in 2015, according to the CEA. Consequences of nonfatal opioid abuse include billions in medical and addiction treatment costs, criminal justice costs, and the resulting decrease in productivity among users.

THE OPIOID LITIGATION:

Numerous municipalities that are working with the “National Consortium” have already filed suit against the pharmaceutical distributors – Cardinal Health, AmerisourceBergen, and McKesson Corp. – alleging each of the distributors played a pivotal role in creating a public nuisance by failing to regulate orders of prescription opiates. In these cases, the plaintiffs are seeking damages to cover the costs of services including, but not limited to: medical care and treatment for patients suffering from opioid-related addiction or disease; treatment of infants born with opioid-related medical conditions; costs associated with caring for children whose parents suffer from opioid addiction; and law enforcement and public safety services related to the opioid epidemic.

Among the list of nearly 200 public entity clients represented by the “National Consortium” are the City of Birmingham, Alabama; the City of Louisville, Kentucky; the City of Baton Rouge, Louisiana; Kanawha County, West Virginia; New Hanover County, North Carolina, Scioto County, Ohio; and the State of New Mexico. The list includes numerous local governments across the nation and a sovereign tribe of Native Americans.

The “National Consortium” represents over half of the cases filed in federal courts across the country. On December 5, 2017, an order was issued by the Panel on Multi-district Litigation, which is made up of federal judges across the country, consolidating the federal opioid cases into a Mass District Litigation to be handled in Cleveland, Ohio by U.S. District Judge Dan Polster of the Northern District Court of Ohio. Judge Polster will preside over all lawsuits filed in federal courts nationwide that claim drug manufacturers overstated the benefits and downplayed the risks of using opioids and that distributors failed to properly monitor suspicious orders of prescription opiates. The order will have no effect on the state court cases filed by the “National Consortium.”

Regardless of geography, for each of our clients, their situation boils down to these drug distributors showing complete disregard for public safety in their never-ending quest for more money and more profits. These municipalities have been stuck footing the bill for everything from neonatal intensive care treatment for babies who are born addicted to opioids to an unprecedented number of bodies that must be stored in local morgues. It’s not right. And now we intend to hold these companies responsible for the disaster they have created.

THE LITIGATION TEAM (NATIONAL CONSORTIUM):

Greene, Ketchum, Farrell, Bailey & Tweel  LLP For 60 years, Greene, Ketchum, Farrell, Bailey & Tweel LLP has been committed to fighting for justice for their clients.  With four partners, the firm operates as an elite litigation team.  The firm is experienced in handling mass litigation (having filed and tried to verdict some of the first transvaginal mesh (TVM) cases in the country), pharmaceutical litigation, toxic tort litigation, product liability litigation and chemical spill litigation.  The firm also has experience handling litigation on behalf of public entities like the State of West Virginia.

Greene Ketchum’s attorneys have successfully tried numerous civil cases to verdict in state and federal courts. Their skilled advocacy has resulted in record breaking verdicts and judgments and millions of dollars in verdicts and settlements for clients.  For their work, the firm’s attorneys have been recognized by legal organizations for excellence and included in The National Advocates Top 100 Trial Lawyers and West Virginia Super Lawyers®.  In addition to their legal work, the firm’s attorneys have also served on numerous legal and educational boards in West Virginia, including West Virginia State Bar Board of Governors; the West Virginia Ethics Commission; West Virginia Law Institute’s Governing Council; West Virginia Judicial Vacancy Advisory Commission; West Virginia Association for Justice Board of Governors; Marshall University Foundation, Inc.; The Society of Yeager Scholars at Marshall University; the Faculty Merit Foundation of West Virginia, Inc. (selects higher education’s “Professor of the Year”); the Marshall University Graduate School Advisory Board; Hospice of Huntington; and the Cabell County American Cancer Society.

Baron & Budd PC Baron & Budd, P.C. is among the largest and most accomplished plaintiffs’ law firms in the country. With 40 years of experience, Baron & Budd has the expertise and resources to handle complex litigation throughout the United States. As a law firm that takes pride in remaining at the forefront of litigation, Baron & Budd has spearheaded many significant cases for entities and individuals. Since the firm was founded in 1977, Baron & Budd has achieved substantial national acclaim for its work on cutting-edge litigation, trying hundreds of cases to verdict and settling tens of thousands of cases in areas of litigation as diverse as pharmaceuticals and defective medical devices, asbestos and mesothelioma, water contamination, fraudulent banking practices, motor vehicles, employment, and other consumer fraud issues. Baron & Budd has represented hundreds of public entities in pharmaceutical, environmental, consumer and securities litigation.   The firm’s attorneys have served or continue to serve on Plaintiffs Steering Committees and in key leadership roles in complex, multi-district litigations.

Levin Papantonio Levin Papantonio was founded in 1955, in Pensacola, Florida, and is one of the largest plaintiff’s law firms in the country with nearly 40 attorneys and more than 150 support staff. Levin Papantonio has a longstanding reputation as one of America’s premier trial firms. Levin Papantonio attorneys have tried more than 150 cases resulting in jury verdicts ex-ceeding $1 million, and the firm has recovered more than $3 billion through verdicts and settlements over the last 25 years. The National Law Journal recognized Levin Papantonio as the fourth most successful law firm in America based on total jury verdicts in 2002. Fred Levin was named one of the nation’s “Top Ten Litigators.” Three of the firm’s attorneys have been nominated as one of the top trial teams in the country by the Public Justice Foundation.  For over 60 years, Levin Papantonio attorneys have continued their committed to aggressively pursuing clients’ rights through trial.

Hill, Peterson, Carper, Bee & Deitzler PLLC The Law Firm of Hill, Peterson, Carper, Bee & Deitzler, PLLC, began in 1980, when senior partner, R. Edison Hill, departed a large corporate and insurance defense firm to begin a small personal injury practice. The firm’s attorneys represent individuals and families in many diverse areas of complex litigation including water contamination, personal injury, pharmaceutical and defective medical devices, and medical malpractice. The firm’s attorneys were awarded the prestigious Trial Lawyer of the Year award by Public Justice in 2005 for their work on the successful class action litigation Leach, et al. v. E. I. du Pont de Nemours and Company involving representation of plaintiffs who suffered various cancers and other illnesses due to exposure through drinking water to the chemical ammonium perfluorooctanoate (“PFOA” or “C- 8”), a chemical utilized in the manufacture of Teflon. The firm’s attorneys also served on the Plaintiffs Steering Committee for In re: E. I. DuPont de Nemours and Company C-8 Personal Injury Litigation, which has reached a global settlement of close to $1 billion. Hill, Peterson, Carper, Bee & Deitzler, PLLC, has been designated by “Benchmark Plaintiff” (The Definitive Guide To American Leading Plaintiff Firms & Attorneys) as one of West Virginia’s three top and “highly recommended” litigation law firms.

mchugh fuller McHugh Fuller Law Group is a trial firm based out of Hattiesburg, Mississippi that specializes in complex litigation and trials in the health and medical fields. With only eight members, the firm functions as an elite trial team made up of experienced litigators and legal writers. The attorneys at McHugh Fuller are admitted to practice law in eighteen states including Mississippi, Florida, Texas, Alabama, Arkansas, Georgia, Illinois, Kentucky, Michigan, Missouri, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Tennessee, West Virginia, Wisconsin, and the District of Columbia. Our lawyers have tried over one hundred cases, obtaining multi-million dollar verdicts in courts throughout the country. The attorneys at McHugh Fuller have amassed over three-hundred million dollars in jury verdicts alone, and have successfully handled appeals before State Supreme Courts and Courts of Appeal in seven states, numerous Federal District Courts, the 4th, 5th and 11th Circuit Courts of Appeal and the United States Supreme Court.

Powell & Majestro  PLLCFounded in 2002, Powell & Majestro, P.L.L.C. has been a premier resource for clients who want experienced, dynamic legal representation. With more than 55 years of combined experience, Powell & Majestro attorneys are nationally recognized for their work in serious injury claims. Powell & Majestro attorneys have successfully tried numerous civil cases to verdict in state and federal courts. Their skilled advocacy has returned recoveries totaling hundreds of millions of dollars in settlements and verdicts for clients.

GREENE KETCHUM OPIOID ARTICLES/STORIES/VIDEOS:

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