Simmons Hanly Conroy “envisions commencing a separate action on behalf of Broome County in state supreme court here,” county attorney Robert Behnke said.
The Suffolk lawsuit alleges Purdue Pharma, the maker of OxyContin, and other companies “manufactured, promoted and marketed opioids for the management of pain by misleading consumers and medical providers through misrepresentations or omissions regarding the appropriate uses, risks and safety of opioids,” according to papers filed in that county’s supreme court.
Those “misrepresentations and omissions” caused injury to the county and its residents, according to the suit, which seeks unspecified punitive and compensatory damages.
“The defendants in this case have long known about the addictive qualities and other risks associated with prolonged use of opioids, and they must be held accountable for the misrepresentations and the harms to society as a result,” said the firm’s Paul Hanly, lead counsel for Suffolk County in the lawsuit, in an August news release.
Broome County Executive Debbie Preston said a lawsuit would put opioid drugmakers on notice: The burden of dealing with the social problems that stem from addiction cannot rest solely on on local governments, nonprofits and law enforcement.
“Counties and states cannot afford to keep pumping the money into fixing the problems without something being done to hold the companies accountable,” she said.
In the past two years, California’s Santa Clara and Orange counties, as well as Chicago and Mississippi, have pursued lawsuits similar to the one filed by Suffolk. All of them hinged on an allegation the companies deceptively marketed their products, resulting in injury to the plaintiffs and their residents.
The California cases were put on hold last year pending a Food and Drug Administration ruling. A district judge dismissed one complaint by Chicago in June 2015, but the city filed against six drugmakers months later, arguing the companies overstated benefits but downplayed risks. The Mississippi case is before a state judge.
Also in 2015, Purdue Pharma settled an eight-year-long lawsuit filed by the state of Kentucky, alleging the company made misleading claims about the addictiveness of OxyContin. Purdue did not admit wrongdoing but agreed to pay $24 million.
Over two days in 2007, Purdue also agreed to a $19.5 million settlement with 26 states that alleged it improperly urged physicians to prescribe OxyContin, and pleaded guilty in federal court to civil and criminal charges that it misled the public about the drug’s risk. The plea brought $600 million in fines and fees, along with separate fines for three top executives.
Last week, the county legislature authorized Broome to pursue an agreement with Simmons Hanly Conroy “to litigate against the manufacturers of opioid pain medicines.”
Dan Reynolds, the Republican chairman of the legislature, called the authorization a “more aggressive approach” to the problems caused by addiction, including rising costs of health care and law enforcement.
The opioid problem “is not something anybody can shy away from,” he said. “Part of the response is through the legal process, and I think this is a step in the right direction. But it’s a long-term move, not a quick fix.”
Rick Su, a professor of law at the University at Buffalo, said while there are relatively few municipalities currently pursuing legal action against drugmakers, “a cascade” could be on the horizon. Once more counties and cities see how the initial suits progress, and as firms begin to build a track record in this type of litigation, he said, more of them might begin to act.
This happened before. Su pointed to both the tobacco litigation and the late-1990s suits against gun manufacturers. While the former led to a massive settlement, the latter — led by cities — was derailed by the industry’s deep pockets and political power.
“One question to ask is are the drug manufacturers going to be more like the tobacco industry, and face judgments, or are they going to be more like the gun industry and find they have a lot of lobbying power at the state level, and therefore can convince the state and federal governments to bar these lawsuits,” Su said.
Alexis Pleus, of the nonprofit TruthPharm, which advocates for greater access to treatment for people with drug addiction, said her organization commended Broome’s steps toward possible legal action.
“The pharmaceutical industry must be held accountable, and the more government agencies that pursue lawsuits, the faster this problem will turn around nationally,” she said. “We do wish though that our local county government would take a more active role in spending funds in the meantime. These lawsuits can take years, but we have Broome County residents desperate for help and many dying now.”
Both Behnke and Preston acknowledged that Broome was out in front in terms of legal action against drugmakers, and drew parallels to the tobacco settlement of 1998. That action, which settled Medicare lawsuits by 46 states against Big Tobacco, resulted in hundreds of billions of dollars in payments to states and municipalities.
Much of Broome’s approximately $63 million share went to debt reduction and capital projects, including renovation of the George Harvey Justice Building. Any settlement in this case, Preston said, ought to be used to mitigate the toll addiction has taken, not for other county business.
“It has to go into providing more treatment and more beds for this problem,” she said, adding that Broome continues to work toward expanding treatment access. The county is not banking on a settlement as a quick fix, she noted.
The drug companies “are aggressive in their advertising campaigns — they’re saying the benefits outweigh the risks, and it’s not true for long-term use of opioids,” she said. “The drug companies are at the root of this addiction crisis, and they’re getting a pass.”
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