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Florida Record

Manufacturers, distributors of opioids ordered to reply to state complaint within weeks

By John Breslin | Aug 27, 2018

DADE CITY - Manufacturers and distributors of opioids have until next month to reply to a complaint filed by Florida that blames them, at least in part, for the epidemic of overdoses and deaths sweeping the state and country.

Oxy Cotin

DADE CITY - Manufacturers and distributors of opioids have until next month to reply to a complaint filed by Florida that blames them, at least in part, for the epidemic of overdoses and deaths sweeping the state and country.

The lawsuit, filed by Attorney General Pam Bondi on behalf of the state in the Sixth Judicial Circuit in Pasco County, alleges that manufacturers, including Purdue, the makers of Oxycontin, deliberately flooded the country with "dangerous and addictive" drugs.

And, it is further claimed, the manufacturers delivered misinformation and used physicians to market the products, and that they were abetted by distributors.

The lawsuit in Florida, to be presided over by Judge Declan Mansfield, is just one of hundreds filed by states, counties and municipalities across the country against the manufacturers of opiods. Some, like in Pasco County, are individual, others are being swept up into multi-district litigation, with federal claims consolidated in Ohio.

Essentially, the lawsuits claim the opioid manufacturers, by marketing, distributing, and encouraging the sale of opioids for a wide range of pain, not just chronic, allowed a market to develop that led directly to the present crisis, where tens of thousands every year are dying, now mostly of illicit fentanyl and heroin overdoses.

In a statement to the Florida Record, the attorney general's press secretary Kylie Mason said, "As this litigation is ongoing, we cannot comment further at this time."

Mason referred to an earlier statement made by Bondi in which she stated, "We are in the midst of a national opioid crisis claiming 175 lives a day nationally and 15 lives a day in Florida, and I will not tolerate anyone profiting from the pain and suffering of Floridians."

The complaint, she added, is designed "to hold some of the nation’s largest opioid manufacturers and distributors responsible for their role in this crisis and seeks payment for the pain and destruction their actions have caused Florida and its citizens.”

Apart from her own in-house legal team, Bondi has assembled a number of outside attorneys to help in the lawsuit, though none are known to be among the heavy hitting trial lawyers, including those who led the charge against big tobacco.

"I would never apply for that position or that task, and I don't know any of the top-tier lawyers that would," Steve Yerrid, a Tampa-based trial lawyer and part of the team that took on the tobacco companies, and won nearly $12 billion for Florida, told the Tampa Bay Tribune at the time the suit was first filed.

This is largely due to a 2010 law that capped fees for private lawyers at $50 million.

According to court documents, the manufacturers and distributors, including Purdue, Joihnson & Johnson, and Cardinal Health, must reply to the complaint by Sept. 17.

But the Florida suit, filed in May, is not universally supported, with some believing the state is going after the wrong targets.

William Large, of the Florida Justice Reform Institute, told the Florida Record: "I believe the lawsuit is without merit and the reason is the state is suing the manufacturers and distributors."

He added, "Manufacturers of prescription drugs depend on a learned intermediary to identify known users at risk."

The doctrine dates from a 1966 court decision, one now recognized by most states, that “the purchaser’s doctor is a learned intermediary between the purchaser and the manufacturer," and that this provides some defense when it comes to product liability lawsuits.

Large believes a prescribing physician is in a better position to know what patients need and to know the risks associated with them.

"The individual that interfaces with the patient is the physician, the learned intermediary who communicates with the patient and knows the patient," Large said.

"The state is focusing on entities with the least amount of information," he said.

He added that the simple reason the litigation strategy is not focused on doctors is because "they do not have the deep pockets."

"The case against the distributors should be dismissed absolutely," Large said. "That has no merit." 

He argued the the distributors were simply middlemen.

But the complaint states, "Defendants knew that opioids were dangerous and addictive; nevertheless, they collectively used front organizations that they funded to disseminate misinformation about the use of opioids for chronic pain treatment."

Defendants also are alleged to have bankrolled medical professionals known as key opinion leaders (“KOLs”) to endorse and promote the use of opioids. The distributors were key players in marketing opioids, the complaint alleges.

The complaint further bluntly alleges that the "devastating opioid crisis" that caused 5.275 Floridian deaths in 2016 - 15 a day - was created by the defendants.