The Albany County Commission signed a deal Tuesday with the Wyoming Attorney General’s Office to facilitate an eventual lawsuit against opioid manufacturers and distributors. Teton County became the first county, in July, to approve the state’s litigation plan.
If the state files suit as expected, Wyoming’s litigation is almost sure to be consolidated in the Northern District of Ohio, which has now absorbed more than 400 other federal opioid cases.
Currently, Wyoming is participating with at least 40 other states in the Ohio case’s settlement negotiations.
The consolidated case is being handled by Judge Dan Polster, who indicated in March that at least “discovery, motion practice and bellwether trials” might be necessary to overcome barriers in settlement talks. One of those “bellwether trials” has been set for March.
Terms of agreement
The settlement negotiations impose nondisclosure terms onto Wyoming’s attorneys, but the memorandum of understanding signed Tuesday will give the Attorney General’s office more freedom to share information with Albany County officials, Chief Deputy Attorney General John Knepper said.
“While participating in this multistate effort, my office has also sought and reviewed evidence specific to Wyoming. We continue to actively prepare to file a successful lawsuit based on a Wyoming-specific investigation and a careful analysis of Wyoming law,” Attorney General Peter Michael says in a July 26 letter to Wyoming county commissioners.
Since the Michael could also bring claims separate from the Ohio case based on rules in the Wyoming Consumer Protection Act, the agreement also provides a benefit to the state.
A Wyoming-specific case would need the state to assemble a horde of witnesses who can personalize the consequences of opioid proliferation. Michael said local officials will be paramount to connecting the Attorney General’s Office with potential witnesses.
“As the elected letters of your counties, you are likely familiar with these tragic stories,” Michael says. “A (MOU) will allow us to discover and persuasively tell the complete story of the opioid crisis in Wyoming.”
The agreement with the Attorney General’s office charges Albany County Attorney Peggy Trent with “seeking out and identifying documents, information and witnesses connected” to the investigation.
In 2016, Wyoming’s prescribing rate for opioids was higher than the national rate. Michael’s office has been investigating for almost two years whether “certain manufacturers and distributors have engaged in unlawful practices in the marketing, promoting, advertising, selling and distributing of opioids.”
Both Carbon County and the Northern Arapaho Tribe have signed on with private law firms to individually sue opioid manufacturers. Michael’s office has since urged counties to allow the state to take the lead rather than suing alone.
During the proliferation of the nation’s opioid epidemic, litigation against manufacturers has become vogue among tort lawyers. In these cases, law firms are typically compensated on a contingency basis, meaning they’ll only be paid once damages are awarded.
“My concern has been that type of cacophony is not the way we typically do things in Wyoming,” Knepper told Albany County commissioners. “Wyoming’s population alone dilutes our voice. We have less of a per capita voice than most of America’s major metropolitan areas.”
The consolidated case in Ohio is widely expected to lead to a massive settlement like the one among cigarette companies in the 1990s that continues to boost coffers of governments across the U.S.
Just as the tobacco settlement funds were used in Wyoming to fund anti-smoking campaign, Knepper said his office will urge the Legislature to appropriate opioid settlement funds to preventing and treating opioid abuse.
“Our office feels very strongly that the money should go to substance abuse programs in the state,” he said.
Suing via a private firm would increase Albany County’s chances of being allowed to use settlement funds for general expenditures, but commissioners indicated support for the state’s approach on how the money could be spent.
“We could sue on our own and share the money with some ambulance chaser, or sue with the state for free,” Commissioner Heber Richardson said.
As a state agency, the Attorney General’s office also has an advantage over private lawyers by having access to opioid-related data from the Wyoming Department of Health and the Department of Corrections.
The consolidated Ohio case targets the well-documented efforts of opioid manufacturers to downplay addiction risks while marketing their products as long-term treatments for pain.
In 2007, Oxycontin’s manufacturer — Purdue Pharma — agreed to pay $600 million for misleading the public about the risk of addiction.
Despite the blowback against Purdue a decade ago, the company has continued to bring in as much as $3 billion in revenue for Oxycontin in recent years.
Defendants also include Cephalon Inc., which pleaded guilty in 2008 for misleading promotions in its marketing of its two opioid products: Actiq and Fentora. The Food and Drug Administration approved the drugs only for treating cancer pain, but Cephalon promoted the drug off-label to non-oncologists. The company ultimately agreed to pay $425 million.
Last year, Mallickrodt — a manufacturer of generic oxycodone — agreed to pay $35 million to settle the Department of Justice’s allegations that the company failed to detect and notify the federal government of suspicious orders.
Promotional schemes among opioid distributers included direct-to-physician marketing, materials speaker programs and webinars, and “false or misleading unbranded advertisements.”
The companies developed “front groups,” like the American Pain Foundation, which promoted opioids and dissolved in 2012 after an investigation by the U.S. Senate Finance Committee.
Endo Pharmaceuticals, which produces Opana ER, used advertisements depicting patients with physically demanding jobs — like construction workers — to imply the drug would provide long-term pain-relief and functional improvement.
In June 2017, the FDA demanded Opana ER be removed from the market.
Another ad by Purdue depicted a “54-year-old writer with osteoarthritis,” suggesting OxyContin would help the writer work more effectively.
In advertisements to doctors, the defendants have suggested opioids have a low risk of addiction and withdrawal symptoms.
In some marketing, the defendants have told doctors that some patients who believe they are addicted are actually experiencing “pseudoaddiction” — meaning their pain is under-treated and their dosage should be increased.
Former New York Attorney General Eric Schneiderman said in a February complaint that the “pseudoaddiction concept has never been empirically validated.”
In 2007, a patient brochure for Kadian — currently manufactured by Allergen — stated that “over time, your body may become tolerant of your current dose.”
“You may require a dose adjustment to get the right amount of pain relief. This is not addiction,” the brochure claimed.
Many of the opioid companies have made similar claims that dosages could be continuously increased without consequence.
Over the past decade, opioid companies have also paid doctors to give testimonials on their behalf. Russell Portenoy, a pediatrician who gave high-profile testimonials about opioids, has since said he was paid to “destigmatize” opioids and claimed that fewer than 1 percent of patients would become addicted to opioids.
“Addiction, when treating pain, is distinctly uncommon,” he said on Good Morning America in 2010. “If a person does not have a history, a personal history, of substance abuse, and does not have a history in the family of substance abuse, and does not have a very major psychiatric disorder, most doctors can feel very assured that the person is not going to become addicted.”