Mass Tort Action: Opioids

Everywhere you turn, there are articles and news segments on the national opioid epidemic. The Poole Law Group is Maryland counsel for a consortium of law firms that are leading the mass tort action against the opioid distributors and manufacturers. The consortium is a litigation team of Baron & Budd, PCLevin Papantonio, et al., and four other associated firms. Attorney Bruce Poole has known some of the attorneys of Levin, Papantonio for over twenty years and can attest to how good they are in representing clients in mass tort actions. Levin, Papantonio is best known for rewriting Florida’s Medicaid Third-Party Recovery Act to allow the State of Florida to sue and recover billions of dollars from the tobacco industry for smoking-related illnesses. Baron & Budd, of Dallas, is a premier firm in the area of mass tort litigation, as well, and has previously given exceptional service to Maryland local governments for environmental claims.

The mass tort action is against the drug manufacturers and distributors (e.g., McKesson, Mallinckrodt, Purdue Frederick, Cardinal Health, and others) who have failed to detect and report suspicious orders of opioids, despite being required to do so by federal and state law. All prescribed opioids must flow through the distributors as federal law requires that opioids be distributed in a closed system. This is a case of the watchdogs abusing their position and shipping massive quantities of drugs to pharmacies and dispensaries and doing so deliberately without checks or stopgaps.

The Centers for Disease Control and Prevention (CDC) has been tracking opioid prescription rates in the U.S. by states and counties since 2006. Here is the CDC’s geographic distribution the United States by counties for the year 2016, along with the listing of each county in Maryland and its retail prescription rate per every 100 persons. While the overall 2016 retail prescription rate in Maryland is 58.7%, Allegany County has a rate of 127.2%, Kent County 117.1%, Washington County 113.1%, Frederick County 67.4%, and St. Mary’s County has 66.8%. In Allegany County, then, for every 100 persons, 127.2 prescriptions are being written. 

Total cost to taxpayers of the opioid epidemic since 2001 has exceeded 1 trillion dollars according to one new study issued by the Altarum Institute, a non-profit group that tracks the healthcare economy. Among its key findings:

    a) The greatest financial cost is due to lost earnings and productivity.

    b) Early deaths and substance abuse disorders also reduce tax revenues.

     c) The average age range for people dying from opioids is between the late 30s and early 40s; these premature deaths cause a heavy toll on families and exacerbate social services costs.

     d) Due primarily to increased emergency room visits, ambulance costs, and the use of Naloxone, healthcare expenses for the opioid population has exceeded 215 billion dollars since 2001.

     e) Costs to governments and public institutions are expected to exceed another 500 billion dollars over the next 3 years. These costs continue to increase as the epidemic moves from prescription opioids to illegal drugs such as heroin and fentanyl.

      f) The study concludes that only a coordinated, comprehensive, and sustained national response is likely to reverse this trend.

Our team and other members of the Plaintiffs’ MDL Leadership asked the manufacturers to stop making 40mg, 60mg and 80mg oxycodone. We also asked the manufacturers to announce that opioids are unsuitable for children and pregnant women. Finally, we asked the distributors to halt distribution of all suspicious orders. By the settlement deadline, it was apparent that no agreement could be reached with the manufacturers and distributors. The judge assigned to the U.S. District Court case—Judge Dan A. Polster—then put the cases on active litigation, ordered discovery, and began having the cases head toward trial. Per Judge Polster’s ruling, three cases have been merged into a Track One bellwether trial scheduled to begin on March 18, 2019 and our team will conduct this trial.

As of today, our legal team now holds 5 of the 22 leadership positions in the MDL and we represent over 480 county and municipal governments across the country. Our litigation team therefore represents approximately 10% of the population of the United States currently.

In Maryland, we are representing Allegany County, Washington County, Cecil County, the City of Cumberland, the City of Frostburg, and the City of Hagerstown. We have presented to other localities and believe it is highly likely we will be representing additional towns, cities, or counties in Maryland very soon.