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By Alex Ebert
Ohio’s attorney general is suing five leading drug manufacturers, including pharma giant Johnson & Johnson, to recover money spent battling the state’s worst-in-the-nation opioid epidemic ( Ohio ex rel. DeWine v. Purdue Pharma LP , Ohio Ct. Com. Pl., No. 17-cv-261, filed 5/31/17 ).
Ohio May 31 became the second state after Mississippi to sue drugmakers for their alleged role in deceptive marketing practices, a type of suit Ohio Attorney General Mike DeWine (R) said has little precedent. At a press conference May 31, DeWine announced the suit against Purdue Pharma, Endo Health Solutions, Teva Pharmaceutical Industries, Johnson & Johnson, and Allergan, the makers of many pain medicines, including OxyContin, Percocet, Actiq, Duragesic and Norco.
DeWine, who confirmed his run for Ohio governor last week and made himself a named plaintiff in this suit, said drugmakers are partially responsible for the addiction epidemic because they targeted doctors who did not have a specialty in pain management and encouraged those physicians to overprescribe opioids.
The suit alleges the drug companies violated the Ohio Consumer Sales Practices Act and created a “public nuisance” in its calls for an injunction against advertising practices it calls “deceptive.”
The complaint also seeks damages for $175 million paid by the Ohio Department of Medicaid and $200 million paid by Ohio consumers that the state’s attorney general says wouldn’t have been spent if people were not over-sold on effectiveness, and under-sold on the addictive qualities, of opioid medication.
The suit makes bold claims against the drugmakers, alleging they downplayed risks of addiction, claimed that dependence and withdrawal were easily managed, and denied risks of higher opioid dosages. All the while, the drugmakers allegedly “falsely touted the benefits of long-term opioid use, including the supposed ability of opioids to improve function and quality of life” without evidence, the suit says.
The complaint alleges drugmakers paid doctors and front groups to carry these misleading messages, “borrowing a page from Big Tobacco’s playbook” to persuade “doctors and patients that what they had long known—that opioids are addictive drugs, unsafe in most circumstances for long-term use—was untrue, and quite the opposite, that the compassionate treatment of pain required opioids.”
“We firmly believe the allegations in this lawsuit are both legally and factually unfounded. Janssen has acted appropriately, responsibly and in the best interests of patients regarding our opioid pain medications, which are FDA-approved and carry FDA-mandated warnings about the known risks of the medications on every product label,” Jessica Castles Smith, spokeswoman for Janssen Pharmaceuticals Inc., told Bloomberg BNA in an email.
Castles Smith said opioid medications made by Janssen, which is owned by Johnson & Johnson, “give doctors and patients important choices to help manage the debilitating effects of chronic pain.”
DeWine confirmed the suit was intentionally filed in Ohio’s rural Ross County, one of the worst-hit regions in the country, where overdose and death has become a sorrowful backdrop to small town life. Chillicothe, the largest city in Ross County and home to 22,000 people, reported 44 overdose deaths in 2016 and 42 in 2015.
In 2015, more than 1.6 million opioid pills were dispensed in Ross County, according to the state’s computer system which tracks opioid prescriptions. That’s enough to give each of the 78,000 people in Ross County 21 pills.
“We share the attorney general’s concerns about the opioid crisis and we are committed to working collaboratively to find solutions,” John Puskar, spokesman for Purdue Pharma, told Bloomberg BNA in an email.
Puskar said Purdue’s OxyContin accounts for less than 2 percent of the national opioid market and Purdue develops “abuse-deterrent technology” and advocates for monitoring programs and use of Naloxone, a drug used to treat opioid overdose.
Teva Pharmaceuticals could not provide comment because it was still reviewing the 103-page complaint, spokesperson Doris Saltkill told Bloomberg BNA in an email. Allergan and Endo both declined to comment on the on-going litigation.
Ohio’s suit is the latest in a run of highly publicized actions claiming drug distributors and manufacturers had direct roles in the opioid epidemic.
In April the Cherokee Nation sued major drug distributors, including McKesson Corp., Cardinal Health Inc., CVS, Walgreens, and Wal-Mart, alleging those companies fueled the opioid crisis and profited from opioid sales. The tribe claimed the companies enabled opioids to fall into illegal channels, didn’t alert regulators to suspiciously large quantity orders, and used financial incentives to increase opioid sales.
Similar legal battles rage in West Virginia, where in January Ohio-based Cardinal Health Inc. agreed to pay $20 million and Chesterbrook, Pa.-based AmerisourceBergen Corp. agreed to pay $16 million to settle state claims that those companies sold their drugs to “pill mills” that then fueled the state’s prescription-drug abuse problem.
Although DeWine and many media outlets claim Ohio’s suit is second to bring claims against manufacturers, Ohio is far from a trailblazer on this front.
After three years there still has been no resolution to a 2014 suit brought by the City of Chicago alleging similar marketing deception. The city is now onto its third amended complaint.
Another action, brought against five drugmakers, was stayed in 2015 by a California state-court judge who ruled that the proceedings should be halted while a Food and Drug Administration investigation delved into the issue.
About two weeks ago, four of the five drug manufacturers sued by Ohio were sued by New York’s Orange County in state court alleging deceptive advertising practices. According to the county’s press release, it is the fourth New York county to file such a suit against drugmakers.
Two months before that, the Mississippi attorney general sued drug manufacturers alleging deceptive marketing leads to drug abuse.
To contact the reporter on this story: Alex Ebert in Columbus, Ohio, at email@example.com
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Ohio's complaint is at http://src.bna.com/pm2.
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