Parties shift blame to physicians, users in California opioid litigation.
McKesson Corporation’s attorney, Christian Pistilli of Covington & Burling, argued in a San Francisco virtual court hearing, drug users, not licensed distributors, are to blame for the city’s opioid epidemic. “The persons most directly responsible for the city’s harms are the users who illicitly injected heroin and then disposed their needles in a way that caused the city’s expense,” Pistilli said during a hearing on the drug companies’ motions to dismiss.
The city is seeking millions in damages from eight companies, alleging they “fraudulently marketed opioids” and five companies that “distributed opioids while failing to maintain effective controls to flag suspicious orders and prevent drugs from leaking onto the black market.” The defendants include Purdue Pharma and the Sackler family, Endo Pharmaceuticals, McKesson, Cardinal Health, Walgreens and others. The case was transferred to San Francisco earlier this year from the litigative proceedings taking place in Ohio to serve as a bellwether case to determine if cities can file against opioid manufacturers and distributors under the Racketeer Influenced and Corrupt Organizations (RICO) Act.
U.S. District Judge Charles Breyer, nominated by former president Bill Clinton, questioned whether the city could hold drug companies liable for “the cost of removing syringes from city property, fixing toilets and plumbing fixtures damaged by improper needle disposal and training nonemergency medical staff on how to use naloxone to reverse opioid overdoses and save lives.” Breyer contended, “The independent acts of drug users might break the chain of causation and make it impossible to hold drug companies liable for damage to city property. The damage is done by the independent actions of the addicts to destroy the property.”
Representing San Francisco, attorney Elizabeth Cabraser of Lieff Cabraser said a “direct flow exists from the drug companies’ actions to harm inflicted on the city.” She argued, “False advertising and improper controls over distribution caused the number of people using injectable drugs in San Francisco to spike from 9,000 in 2005 to 25,000 in 2016, a 275% increase.” Cabraser also noted, “Companies like McKesson and Cardinal Health were repeatedly cited and fined by the Drug Enforcement Administration and Justice Department for failing to report suspicious orders and prevent drugs from leaking onto the black market between 2007 and 2016. This wasn’t just foreseeable in the negligence sense.”
“Standing between distributors and the release of opioids is the professional judgment of two professionals — doctors & pharmacists,” Pistilli responded. “The opioids could harm no one if a doctor didn’t write a prescription and a pharmacist didn’t sell it…Other individuals who funnel drugs to the black market, sell drugs to users, and the users themselves also play roles that separate wholesale drug distributors from opioid-related problems that plague the city.”
Representing Janssen Pharmaceuticals, attorney Charles Lifland of O’Melveny & Myers, added, “The federally regulated label matches what drug companies told doctors: Evaluate drug-seeking behavior on a case-by-case basis. Some patients may need better pain management. The doctor should address that instead of dismissing all behaviors as drug seeking.”
A decision in the matter is pending.