Opioid plaintiffs: A small percentage of pill shipments were 'suspicious.' Or maybe it's nearly all of them

By Daniel Fisher | Dec 14, 2018

CLEVELAND (Legal Newsline) - Forced to identify opioid prescriptions they say were “suspicious” and never should have been shipped, Ohio cities and counties came up with a rough estimate. Very rough. 

Court papers show the figure they supplied ranged from less than 10% of pills shipped to more than 86%, as these plaintiffs attempt to hold opioid manufacturers and distributors liable for billions of dollars.

In response to a discovery order by U.S. District Judge Dan Aaron Polster, the judge in charge of opioid multidistrict litigation, plaintiffs turned over a 581-page report identifying hundreds of thousands of shipments that potentially fit the definition of “suspicious.” The November 30 filing is sealed, but Special Master David Cohen described it in detail in a revised discovery order this week.

All of the plaintiff estimates were based on raw measures of pills shipped to individual pharmacies in the region around Cleveland and Akron. The lowest estimate simply identified monthly shipments that exceeded the amount shipped to a pharmacy in any of the preceding six months. 

That yielded an estimate of 52,544 suspicious orders between January 1996 and May 2018, or 5.4% of total orders. 

The second method stripped out “suspicious” order months identified under Method One from the six-month period and flagged orders that exceeded the total in any non-suspicious months. That produced an estimate of 364,291 orders over the 22-year period, or 36% of all orders.

Method Three assumed that once a pharmacy placed a suspicious order it should have been blackballed and all subsequent orders treated as suspicious. Using that analysis, 875,055 orders were suspicious, or 86.4% of the total.

The defendant companies complain they are being forced to prepare defenses against the charge they shipped tens of millions of pills that were medically unnecessary or destined for illegal diversion, but the plaintiffs refuse to identify which orders they are talking about. 

The plaintiffs say they can’t identify suspicious orders unless the defendants turn over evidence showing how they determined if an order was legitimate. 

Cohen said  he believes “plaintiffs have done what they can with the information they have, but also that defendants raise a legitimate complaint.” The defendants have the burden under federal law of notifying the Drug Enforcement Administration of suspicious orders and maintaining an adequate system for uncovering them, Cohen wrote. 

But the plaintiffs’ voluminous list of potentially suspicious orders “leaves them unsure regarding exactly which orders they will be called upon to defend at trial.”

In response, Cohen issued a modified discovery order requiring the plaintiffs to supply, by Dec, 31, 10 suspicious orders along with the date of shipment, name of the entity that placed the order and the number and type of drugs shipped. 

The plaintiffs also are required to explain in detail how they identified these orders, why the defendant’s due diligence failed, and why the “order was so suspicious that there was no amount of due diligence that could have removed every basis to suspect the customer was engaged in diversion.”

The revised order is far removed from the defendants’ original demand that plaintiffs identify every order they claim was illegitimate and contributed to the opioid crisis. On the other hand, the special master makes it clear the plaintiffs must provide some tangible evidence of wrongdoing if they are to blame opioid addiction and overdose deaths on manufacturers and distributors, as opposed to the physicians who actually prescribed the drugs. 

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Mckesson Corporation U.S. District Court for the Northern District of Ohio

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