The Phelps County Commissioners voted unanimously to join the multidistrict litigation against opioid distributors and opioid manufacturers. The multidistrict litigation is a unification of Missouri counties as the plaintiffs, and if a settlement is reached the money will go back to the counties.
The county moved to join John M. Eccher of Eccher Law Group of St. Louis who is working with other law firms, thus joining one big lawsuit made up of counties in Missouri that have already agreed to participate in the massive class action suit.
“The ones litigating the case are attorneys who focus on huge class action lawsuits, and they are the ones, who went after big tobacco,” said Phelps County Prosecutor Brendon Fox.
If successful, proceeds from a settlement would be able to be earmarked for prevention programs and other services to help offset the costs being incurred by government agencies responding to the opioid crisis.
The county joining the mass civil lawsuit is on the heels of the report U.S. Sen. Claire McCaskill (D-Mo.) released on the opioid crisis in Missouri, “Fueling an Epidemic a Flood of 1.6 Billion Doses of Opioids into Missouri and the Need for Stronger DEA Enforcement.”
The report found that 1.6 billion opioid doses made their way into Missouri between 2012 and 2017, and identified Phelps County as among the top counties with the highest rates of suspicious opioid orders in the state – orders of “unusual size of frequency based on local ordering patterns.”
Looking at the 45,000 residents that make up Phelps County, 3.6 million opioid pills were prescribed in the county with 81.3 per every man, woman and child, according to Center for Disease Control and Prevention’s most recent report that looks at the prescribing rate per 100 residents in the county.
The staggering number influenced the county when deciding on joining the multidistrict litigation against the opioid distributors and manufacturers named in the report, which emerged from requests McCaskill made to the distributors—McKesson Corporation, AmerisourceBergen Corporation and Cardinal Health, Inc. Along with, the opioid manufacturers Allergan plc, Endo, Mallinckrodt, and Teva Pharmaceuticals USA, Inc.
Senior vice president, John Parker, of Healthcare Distribution Alliance, the national trade association representing distributors including AmerisourceBergen, Cardinal Health and McKesson said, “The misuse and abuse of prescription opioids is a complex public health challenge that requires a collaborative and systemic response that engages all stakeholders.
“Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation.”
Paralleling a concern raised at a prior county commission meeting on June 19 that contemplated how going after the big money players – opioid distributors and opioid manufacturers—will solve the multifaceted problem the county is facing with heroin, opioid addiction and overdoses, since the litigation has elected to not go after the physicians prescribing the opioids.
Phelps County District 1 Commissioner Larry Stratman stated, “It is a huge problem, and it is kind of like the tobacco industry, where we are going after the people that have money, so does that attack the problem?
“Is that really going to help anybody, or does it just hurt big pharma, and big pharma turns around and says now we’ll raise all the rest of our drugs 5 percent to make our money back and we really haven’t solved any of the problems anyway.”
In response, according to Fox, the lawsuit won’t solve the problem, but the tide has been turning in the country for the last few years where the issue is discussed more. Thereby, the litigation is going to help bring about the changes the community would like to see through added awareness to the problem no matter the outcome of the massive civil case.
“You know if they go up and they lose we don’t lose anything. If they go up and they win we might get something; I don’t know. It depends how much the settlement is,” said Fox.
Under the Controlled Substances Act (CSA), distributors carry a legal obligation to monitor and report suspicious orders of controlled substances to the Drug Enforcement Administration (DEA).
The profound amount of opioid products distributed in the U.S. makes compliance with CSA obligations a fundamental component to counteract the opioid crisis. The three distributors have consistently failed to meet their reporting obligations over the past 10 years, according to McCaskill’s report.
In accordance to McCaskill’s report, these different reporting results do not in any way indicate violations of the CSA by the companies involved, but they do highlight the significance of ongoing outreach from the DEA to the industry regarding legal obligations for distributor and manufacturer registrants.
“Distributors report every single opioid order to the DEA – whether it is suspicious or not. Greater communication and coordination with the DEA will help support real-time response against abuse and diversion where it occurs,” according to Parker.
Moreover, McCaskill’s report calls on the restoration of earlier standards for the use of Immediate Suspension Orders, the most important tool for deterring and punishing neglectful compliance by the DEA.
This coincides with the national trade association representing the distributors’ account that the DEA is responsible for setting the annual production of controlled substances in the market, approving and regulating the entities allowed to prescribe and handle opioids, and sharing data with entities in the supply chain regarding potential cases of diversion.
“Distributors are logistics experts, tasked with the primary responsibility of delivering all medicines to licensed pharmacies and healthcare providers. Distributors do not manufacture, prescribe, dispense or in any way, drive demand,” said Parker. “Further, distributors cannot make medical determinations about patient care or provider prescribing.”
These problems were not unforeseeable, especially when telling doctors the pills are safe. The side effect is people like using the pills and if the distributors or manufacturers were suppressing that information or they were lying they are culpable, noted Fox
“This is going to be long and drawn out, but subsequently, county officials might need to figure out what to do with the proceeds, and I would think they would want to educate and rehabilitate. I think filing suit is trying to recover the cost to the counties,” said Phelps County District 2 Commissioner Gary Hicks in a prior commission meeting regarding the litigation.