Washington State's Trial Against Three Major Opioid Distributors Opens Monday in Seattle

Posted

The trial in Washington's lawsuit against the three largest distributors of prescription opioids in the state opened Monday morning with Attorney General Bob Ferguson giving opening statements in King County Superior Court.

The lawsuit, filed in 2019, accuses the three distribution companies — McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp. — of shipping vast amounts of oxycodone, fentanyl and other painkillers into Washington and failing to comply with requirements that they identify suspicious orders that could be diverted to the illegal drug trade and report them to law enforcement. The state has also filed a lawsuit against Johnson & Johnson, with that trial scheduled to begin in January.

Ferguson spoke for a little over eight minutes in what was to be a three-hour opening statement so two assistant attorneys general could lay out the state's case for damages and its plan to abate the crisis over the course of the morning. Attorneys for each of the distributors were to get an hour during the afternoon to present their opening remarks in a bench trial before Superior Court Judge Michael Scott that is expected to last months.

Ferguson called the nation's opioid epidemic "the worst man-made public health crisis in history" and said the state's lawsuit is meant to hold distributors accountable for extraordinarily excessive shipments of opioid drugs into Washington.

Ferguson detailed some of the devastating impacts of the opioid crisis on the state:

More than 10,800 Washington residents have died from overdoses since 2006 "and many more have had their lives ravaged by opioid-use disorders," he said. Opioid-related hospitalizations quadrupled between 2000 and 2018, hundreds of babies are born each year impacted by their mothers' opioid use during pregnancy, and up to 7% of the state's 10th graders are misusing prescription drugs, Ferguson said.

"The evidence will show distributors are all Fortune 15 companies. Each takes in more gross revenue every year than the annual budget for the state of Washington," he said. "The evidence will show distributors — despite their duty and capacity — fell short, far short, of their obligations under the Controlled Substances Act to design and operate a system to prevent the diversion of prescription pills from illegitimate use."

Ferguson said the distributors were all aware of the harm flowing from their conduct and that the companies' executives, in private correspondence, "mocked individuals suffering the painful effects of opioid dependence" and "displayed a callous disregard for the communities and people who bear the impact of their greed."

Ferguson said the state will show how each of the distributors' wrongful conduct amounted to a substantial, contributing factor in creating the opioid epidemic that exists today, and how the impacts of that conduct constitute a public nuisance.

"This court has the authority to order defendants to abate this public nuisance, which affects the health and safety of Washingtonians. We will ask this court to apply a broad, equitable remedy here," Ferguson said, adding Washington was among the first states in the country to understand the dangers of prescription opioids and to create model programs to provide treatment, education and resources to combat the epidemic.

One program, for instance, trained librarians how to administer Narcan, a drug used to treat emergency opioid overdoses, to people experiencing overdoses in public libraries, Ferguson said.



The Attorney General's Office is also seeking significant civil penalties against each of the three distributors for multiple violations under the state's Consumer Protection Act, he said.

"As the evidence at trial will reflect, while the state has directly dealt with some of the fallout from defendants' conduct, there are limits to what state policymakers can do with finite resources," Ferguson told Scott. "Your honor, the evidence at trial will show the facts, the law and the equities require that these defendants be held accountable for their conduct by addressing the terrible, tragic crisis that they fuel in our state."

In the lead-up to trial, Ferguson has said the drug distributors flooded the state with so many opioids that, at various times, prescriptions in 16 counties outnumbered the population. Grays Harbor County, for instance, in 2015 got nearly 120 prescriptions for every 100 people among its population of roughly 73,000. Asotin got roughly 147 for every 100 people that year. Other counties falling into that camp are Snohomish, Clallam, Skagit, Chelan, Okanogan, Pend Oreille, Spokane, Grant, Columbia, Benton, Cowlitz, Wahkiakum, Lewis and Pacific, according to Ferguson.

The companies have said they have been taking steps to help address the crisis and noted that they fulfill prescription orders placed by properly licensed health care providers.

The trial comes after Ferguson in July rejected the state's proposed part of a $26 billion settlement with the three drug companies as well as Johnson & Johnson related to the opioid addiction and overdose crisis.

Under the settlement proposal, the companies that distributed opioids would have paid Washington an estimated total of $527.5 million over 18 years if all of the state's cities and counties opted in and released any current or future claims. But if some cities opt out, the state and participating municipalities would lose up to 50% of the payment, Ferguson said.

The settlement consisted of two separate agreements with opioid distributors McKesson, Cardinal Health and AmerisourceBergen, and Johnson & Johnson.

"The settlement is, to be blunt, not nearly good enough for Washington," Ferguson said at the time. "It stretches woefully insufficient funds into small payments over nearly 20 years, to be shared among more than 300 Washington jurisdictions."

Ferguson says jurisdictions that have gone to trial have obtained better results than the proposed settlement. Oklahoma won a $465 million verdict against Johnson & Johnson, he said, which is more than four times what Johnson & Johnson would pay Washington and all its counties and cities under the proposed settlement.

Oklahoma's state Supreme Court recently tossed out the landmark $465 million ruling against Johnson & Johnson, NPR reported last week. The 5-to-1 decision found the company can't be held liable for Oklahoma's opioid crisis.