Opioid Plaintiffs Seek Data DEA Says Could Hurt Investigations

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By Julie A. Steinberg

Hundreds of cities and counties suing drugmakers and distributors over the opioid epidemic want information in a Drug Enforcement Administration database that monitors transactions involving the pain pills.

“We want to see who is distributing the pills to which pharmacies,” Paul T. Farrell Jr. of Greene, Ketchum, Farrell, Bailey & Tweel LLP in Huntington, W. Va., told Bloomberg Law.

“This is pulling the curtain back in the Wizard of Oz” and could significantly help build their cases, said Farrell, one of the three co-lead counsel for the plaintiffs in federal multidistrict opioid litigation.

But the DEA is pushing back, arguing some of the requested data could jeopardize ongoing investigations, violate company privacy protections, and disclose to criminals where large amounts of drugs are stored.

Judge Dan A. Polster, of the U.S. District Court for the Northern District of Ohio, the federal judge overseeing the consolidated proceedings, has given the parties until Feb. 23 to try to reach a compromise on the data’s release.

“There is a legitimate need for plaintiffs to obtain this data, but the court believes that production must be tailored—perhaps through a protective order—in a way to address the DEA’s concerns regarding breadth, years in question, potential interference in investigations and enforcement actions, and divulging the location of warehouses where opioids are stored,” an order by Polster said.

The cities and counties allege manufacturers and distributors contributed to the crisis by failing to monitor and report suspicious prescription opioid orders, resulting in the diversion of addictive drugs to the illicit market.

Distributor defendants include Cardinal Health Inc., AmerisourceBergen Corp., and McKesson Corp.

Manufacturer defendants include Oxycontin maker Purdue Pharma LP and Johnson & Johnson unit Janssen Pharmaceuticals Inc., maker of Duragesic fentanyl skin patches.

The Controlled Substances Act requires manufacturers and distributors of prescription opiates to report transactions to the DEA.

Data from the DEA’s Automation of Reports and Consolidated Orders System will help the cities and counties gather evidence supporting their claims, such as where large quantities of drugs went and who received them, the plaintiffs say.

ARCOS tracks the flow of DEA-controlled substances, like opioid drugs, from manufacture to sale.

Plaintiffs, DEA Ordered to Address Request

Judge Polster recently ordered the plaintiffs and the DEA to address the plaintiffs’ request for records in the DEA database.

Farrell initially sought the ARCOS data on behalf of Cincinnati and other communities in southern Ohio, hard-hit areas with cases pending before Chief Judge Edmund A. Sargus Jr. in the Southern District of Ohio.

The ARCOS data can reveal the size of orders nationally, regionally, and locally, as a baseline to determine which orders are suspicious, because they are an unusual size, deviate from a normal pattern, or are of unusual frequency, the plaintiffs said in a filing in that case.

“This database can be used, along with other information, to identify unlawful sales of prescription opiates to every pill mill in America,” the filing said.

The DEA raised numerous concerns in objecting to the Ohio communities’ subpoena seeking release of the data. DEA’s authorization to operate ARCOS is conditioned on numerous privacy and information security protections, it said.

Release could reveal information compiled for law enforcement purposes and would interfere with enforcement proceedings, DEA said.

ARCOS data also could be used to identify commercial locations where large amounts of controlled substances are stored, placing them at risk for robbery, DEA said.

However, DEA said it is “willing to continue discussions with Plaintiff concerning the disclosure of ARCOS data consistent with disclosures it has made to other requestors, e.g., state and local government entities.”

DEA shares ARCOS data with state law enforcement and regulatory agencies operating in coordination with DEA for investigative purposes.

In December, the opioid suits were sent to Polster in the Northern District of Ohio.

“Now that I’m in Cleveland, I’ve gone back to Judge Polster and said I would like, on behalf of my clients, to see this data,” Farrell said.

The case is In re Nat’l Prescription Opiate Litig. , N.D. Ohio, 17-2804, 2/2/18 .

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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