Avoyelles anti-opioid suits sent to U.S. court

Not affected by state action against drug manufacturers

Two local lawsuits seeking to hold painkiller manufacturers accountable for the “opioid epidemic” in Avoyelles Parish have been combined with numerous others from across the nation and assigned to a federal judge in Ohio.

Attorney Derrick “Digger” Earles said the suits brought by the Avoyelles Parish Sheriff’s Office and the Avoyelles Police Jury were filed in state court late last year but were removed and placed in the federal court system because the defendants are located out-of-state.

The suits were then taken from the federal court in this state and sent to a “multi-district litigation” action that was assigned to U.S. District Judge Dan Polster in Cleveland, Ohio.

No trial date has been set. In fact, Polster is hoping a court trial can be avoided.

“The judge has shut down all litigation action and discovery while both parties negotiate a settlement,” Earles said. “He wants us to try to reach an agreement before we start the litigation process.”

Earles said the arrangement is complicated because each of the many suits involved are still independent legal actions, but they are being treated as one case being heard by one judge.

ONE COURT INSTEAD OF MANY

“This is not something we asked for,” Earles said. “In fact, we argued against it. The defendants asked for it because they only have to make one argument in one court instead of appearing in many courts across the country and presenting their argument.”

Earles said the advantage to a multi-district litigation case is that it avoids the possibility of conflicting decisions by the various state courts.

“That would result in the district court decision being appealed to the state appeals court, then to the state supreme court and then to the U.S. Supreme Court,” which would hopefully render a decision binding on all parties in all states.

However, that process would take many years to reach that final, binding conclusion, he added.

State and local government entities in Louisiana and elsewhere are seeking payment of damages and penalties from the drug manufacturers due to the costs they have incurred and will incur due to excessive opioid prescriptions in their jurisdictions. Health-related costs due to addiction, crimes committed by addicts and other issues have been cited by those filing suit.

The suits allege the drug companies intentionally misled physicians and the public concerning the risk of addiction to the painkillers.

There is a growing number of states and local government agencies filing similar lawsuits in reaction to alarmingly high rates of addiction and opioid-related deaths nationwide.

STATE COORDINATING ANTI-OPIOID EFFORTS

Louisiana officials are also moving to mount a coordinated effort against “Big Pharma.”

Earles said those actions will not affect the local suits’ progress.

Gov. John Bel Edwards and Attorney General Jeff Landry announced Tuesday (Feb. 20) that they are mounting a coordinated legal effort against opioid manufacturers.

The Louisiana Department of Health (LDH) filed suit on behalf of the state.

In making his announcement, Edwards said the “opioid crisis is sweeping the nation, and this is due in large part to the drug companies that mislead physicians and the public.”

Edwards said a “coordinated effort from the State will produce the best results for the families who have lost loved ones to this epidemic. Justice for them is our number one priority.”
 
He said Landry’s office will pursue the claims vigorously and “hold the opioid manufacturers responsible for flooding our state with these highly addictive drugs and misleading the public about their addictive nature.”

Landry called the issue “one of the most challenging and complex problems facing the state” and said it will take a “concerted effort on many fronts” to coordinate the state’s legal fight and attain the “best interest of the people of Louisiana.”

Landry said he will work hard to hold drug companies accountable for their role in what is commonly called the “opioid epidemic” of abuse, misuse and addiction to the painkilling drugs “that have destroyed so many Louisiana families.”

LIKE BIG TOBACCO OR BIG GUNS?

Those in support of the anti-opioid suits compare it to the lawsuits against Big Tobacco, which resulted in annual payments to states presumably to fund smoking prevention and cessation programs.

That argument claims the manufacturers misled the public concerning the health risk of using their product, which resulted in people damaging their health. The argument further contends that many of those who used the product would not have done so had they been aware of the real health risk.

Those opposed to the legal action compare it to municipalities who filed suit against gun manufacturers in the 1990s, seeking payment to cover the cost of gun-related crimes, deaths and injuries. Those actions were unsuccessful for the most part as courts were reluctant to find gunmakers liable for the misuse of what is a completely lawful product when used as intended.

That argument notes that for a pistol to be misused, someone else -- a criminal, a person intent on suicide, a child -- has to take an action that turns the firearm into an instrument of injury and death. The company, they claim, cannot be held responsible for the misuse of the product.

The drug companies extend that example to their FDA-approved, legal and effective products that become personal and societal problems due to the intentional or accidental misuse of the drugs by individuals.

Pharmaceutical companies say they make the pills. Those pills are sold to wholesalers who sell to pharmacies. Doctors prescribe those pills to their patients. If that process is maintained, the drugs do what they are intended to do. If the individual deviates from the prescribed use of the drug -- or if other “bad actors,” such as pill traffickers and “pill pushing” doctors become involved -- that’s when problems occur.

DOWNPLAYED RISKS

There is no allegation that the painkillers do not do what they promise to do. They treat and reduce pain.

There is also no claim that the product is defective or that the warnings -- which often go unread -- are inadequate.

The allegation of wrongdoing is that manufacturers downplayed or even failed to mention the drugs’ potential for addiction in their marketing campaign to doctors.

The manufacturers claim they addressed that issue many years ago. Those involved in the anti-opioid suits disagree.

Individuals who have sued the painkiller giants have usually lost. Courts found individual victims to be mostly responsible for their own addiction issues and those who died often did not use pills as instructed and acquired them illegally.

State and local governments are considered to be a more “sympathetic victim” in a lawsuit because they have incurred costs even though they have done nothing to contribute to the cause of that cost.

In discussing the issue with police jurors prior to filing a suit on their behalf, Earles said no individual local doctors would be named as defendants in the suit.

However, in previous suits that have gone to trial, the drug companies’ strategy has been to shift any blame for misuse to the doctors who prescribed -- and, presumably, over-prescribed -- the painkillers to the individual suing the company.

It is likely that same tactic will be used should the government entities’ suits go to trial, national legal system observers have commented.

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