SEATTLE (Legal Newsline) - After attorneys for Washington State rested their case on Tuesday accusing three of the country's biggest opioid drug distributors of causing an overdose epidemic, attorneys for the defense moved to dismiss the case, including public nuisance allegations and alleged violations of the Consumer Protection Act.
The trial is being streamed live courtesy of Courtroom View Network.
Defense attorney Ashley Hardin told King County Superior Court Judge Michael Scott that five briefs calling for dismissal will be submitted, the fifth being a joint motion filed by the three defendants.
"There has been a failure of proof," Harden said of the allegations leveled by the state, "that the defendants shipped millions of orders without due diligence. They haven't proved one."
Harden said that both the alleged public nuisance claim and violations of the Consumer Protection Act were groundless.
"There is no basis the court can find unlawful or caused harm," she added.
The court recessed until next week giving time in the interim for the defendant motions to be considered.
Prescription drug distributors McKesson, Cardinal Health and AmerisourceBergen Corp. are accused of irresponsibly over-promoting and distributing opioid drugs to pharmacies and doctors' offices that led to hundreds of overdose deaths in the state. The Washington State Department of Health estimated 1,200 in 2020.
Distributors take pills from the manufacturers and supply them to hospitals, doctor’s offices and pharmacies. The most commonly shipped opioid drugs include OxyContin, Hydrocodone, methadone and fentanyl.
Washington State Attorney General Bob Ferguson is asking for $32 billion in damages to enact anti-drug programs, but a state victory could result in a much higher award when surrendered profits and penalties are added in.
Plaintiff attorneys contend that the epidemic took off in the years after 2002 fueled in part by what they said was the growth in "rogue internet pharmacies" and pill dispensing clinics referred to as "pill mills." The attorneys contend that even though the three companies had anti-drug-diversion programs in place to satisfy requirements of the U.S. Drug Enforcement Administration (DEA), there were not enough checkers at the companies to investigate numerous suspicious orders (larger or more frequent than usual). Some orders that had been red-flagged as suspicious and reported to the DEA by company officials had been shipped to the customer anyway.
Last month the three companies (plus Johnson & Johnson) agreed to pay $590 million to Native American tribes to settle lawsuits filed by those entities, considered their own sovereign nations. Plaintiff attorneys have said the drug epidemic hit the tribes the worst of any ethnic group.
Evidence presented by the state included an exhibit showing a big jump in consumption after 2007 running parallel to a rise in heroin use around 2009. Witnesses for the state said the addicted got their start using legally prescribed opioid pills such as OxyContin and then moved to heroin when the pills became too expensive.
On Monday, the former health officer for Washington State told a courtroom that efforts to combat a rising crisis of opioid drug addiction had not been adequately funded at the state or the federal levels. Dr. Kathryn Lofy, state health officer from 2014 to 2020, is today program director for the Northwest Primary Care Leadership Institute at the University of Washington School of Public Health. Lofy appeared as a witness for the state.
“Was everyone in Washington State (with drug addiction) having access to treatment?” a state’s attorney asked.
“No,” responded Dr. Kathryn Lofy.
“Was there sufficient (anti-opioid treatment) funding?”
“I don’t believe so.”
Lofy said efforts to combat the crisis were in place at the start of her tenure as state health officer.
“Yes, the state was experiencing an epidemic (2014),” she said. "An epidemic we defined as an increase (overdose) over baseline where there is a clear increase in opioid deaths. We call it an outbreak or an epidemic, also a crisis. The initial problem was an increase in overdose associated with prescription opioids.”
Evidence presented showed a 2011 increase in deaths associated with heroin use. The drug fentanyl became more popular in recent years.
“Fentanyl is a very powerful drug and it does not take much (use) to overdose and die,” Lofy said. “There has been a sharp increase in fentanyl over the past few years.”
A chart exhibited by the state showed that between the years 1999 and 2010 sales of prescription opioid drugs, deaths and treatments for addiction went up and paralleled each other.
“This made us concerned that having so many prescription opioids in the state was problematic,” Lofy said. “We understood that a large number of people on heroin had been using prescription opioids. You’re about 40 times more likely to become addicted to heroin (using prescription opioids). The drugs bind to the same brain receptors.”
Approximately 57% of heroin users had become hooked first on prescription opioids, state attorneys contended.
“Were (treatment) needs not being met?”
“Yes,” Lofy agreed. “A number did not have access to treatment. One problem was the cost of Naloxone (anti addiction drug). It’s expensive. Initially it was federally funded, but you can’t predict federal funding.
"We wanted it (Naloxone) available in homeless shelters,” she added.
Lofy said additional pressure came from the COVID epidemic.
“There was an increase in OD deaths and it also required staff from the Department Of Health to be moved to help with the (COVID) pandemic.”
Nevertheless, Lofy said a State Interagency Opioid Response Plan put into place to combat the crisis, involving a coalition of participating organizations, had made some progress.
“Were the plans effective?”
“I believe they were,” Lofy said. "We were seeing some movement in the right direction.”
“Do you believe the response (to the opioid crisis) was adequate?”
“No.”
Questioning of Lofy by defendant lawyers was brief. Josh Podoll, attorney for Cardinal Health, said that many people who used heroin had previously used three other drugs.
“Yes,” Lofy said. “There is often more than one type.”
Lofy agreed that over half of people with addiction problems who were questioned said they wanted help, while 24% said they were not interested.
On Tuesday the state played a deposition tape recorded in September of 2019 questioning Michael Oriente, McKesson director of regulatory affairs for national accounts. The state exhibited an email in which Oriente said he had been "beat up" over requests (in 2008) for increased drug orders from customers and described the orders as a "tsunami."