If you’ve been paying particular attention to the opioid crisis, you’ll remember that between 2007 and 2012, Berkeley County saw 150 total opioid-related overdoses, with an overdose rate of 14.4 per 10,000 people. Comparatively, across that same time period, Jefferson County saw 57 total opioid-related overdoses, with an overdose rate of 10.6 per 10,000 people. These numbers are backed up by even more alarming data, as was uncovered in the Charleston Gazette-Mail’s Pulitzer Prize-winning piece in December 2016, where, across the same span, drug distributors dumped 780 million doses of opioids onto West Virginia—resulting in at least 1,728 overdose deaths.
Six years later, the epidemic hasn’t subsided; in fact, it’s only gotten worse. In response, a huge group of attorneys has organized nationwide in an effort to sue the drug makers, and Jefferson County attorney Stephen Skinner, of Skinner Law Firm in Charles Town, is among them. Skinner joins other groups throughout West Virginia in filing a lawsuit against opioid manufacturers and distributors, accusing them of illegally marketing and distributing opioids that led to the state’s epidemic.
The Berkeley County Council, in May (2017), voted 3-2 to engage in the litigation targeted at the manufacturers and distributors—which alleges that OxyContin maker Purdue Pharma, and others, embarked on a deceptive marketing campaign to convince doctors and the public that their drugs had a low risk of addiction, which was contrary to overwhelming evidence that opioids are highly addictive.
According to Skinner Law Firm, the lawsuit alleges that the companies made billions off the deceptions nationwide. Additional manufacturers include Teva Pharmaceuticals, Janssen Pharmaceuticals, Endo Pharmaceuticals, and Allergan. Distributors include AmerisourceBergen, Cardinal Health, and McKesson.
Skinner Law agreed to take on the case at no expense, opting to take 25 percent of the proceeds if it is successful—which would increase in 5 percent increments should the case become part of mass litigation or take longer than expected due to appeal. About a dozen other counties in West Virginia also filed.
Skinner will represent both Berkeley and Jefferson Counties. The suits were filed in the United States District Court for the Northern District of West Virginia—in what is believed to be the first federal lawsuit in West Virginia that names the distributors and manufacturers in one action.
In addition to an “abatement” fund designed to decrease the overall opioid problem, the lawsuit states that the counties are seeking an unspecified amount of relief, “… including costs for providing medical care, additional therapeutic and prescription drug purchases and other treatments/services for patients suffering from opioid-related addiction or disease including overdoses and deaths; costs for providing treatment counseling and rehabilitation services; costs for providing treatment of infants born with opioid-related medical conditions; costs associated with law enforcement and public safety relating to the opioid epidemic; and any other expenses or damages caused by the defendants’ diversion of opioids.”
The lawsuit also notes: “The opioid crisis is the result of the combined acts and omissions of opioid manufacturers and wholesale distributors who placed sales and profits over the health and welfare of the general public.”
Skinner elaborated, “We want these pharmaceutical companies—who knowingly marketed and manufactured opioids—to take responsibility for what they did, and make it right. In fact, we found that this goes back to at least 1996 with Purdue—when they started marketing OxyContin to the medical community and the public and assuring them it wasn’t addictive.”
Though Skinner has some experience with this type of litigation, he admits that this is definitely a special case. “We’ve got well over a hundred municipalities represented across the country at this point—the epidemic has hit many smaller governments, and now they’re stepping up. We’ve all felt the impact of it—with more crime, public health disruption, and incarceration—and up to this point, taxpayers have been taking the hit in both Berkeley and Jefferson Counties—in addition to the overdoses. The manufacturers and distributors have to be held accountable for that.”
Strength in Numbers
Skinner received a call last spring from lawyers in the southern part of West Virginia who’d been working on the case for a while and had already filed on behalf of a few counties. They suggested to him that it should be examined in the Panhandle, for obvious reasons, and the conversations began.
“We appeared in front of the commissions to explain what we were doing and what it would be—how the mechanics would work,” Skinner added. “Some of them had heard pitches from other law firms, or had at least received mail from other law firms, solicitations. I’d represented the Jefferson County Commission in the past.”
Skinner began attending group meetings in West Virginia. “It was clear that we were heading towards targeting both the manufacturers and distributors—especially since the first real law suit had already been filed by the City of Chicago—versus Purdue Pharma. I could see what was going to happen, and what was starting to happen in other places.”
He then traveled to St. Louis, Missouri, in late November, to represent both counties in a then-pending application to the Judicial Panel on Multidistrict Litigation (MDL) that would consolidate hundreds of lawsuits by counties and municipalities across the country.
Since then, the host state for the MDL was chosen—Ohio—and the first official hearing occurred in January. “The judge essentially indicated that we’ve got to get this thing settled because there are people dying every day,” Skinner pointed out. “There were a hundred and fifty lawyers in the room. He basically said that he was going to delay the case in order to get it resolved.”
Skinner admitted that the Ohio choice was likely political, “… but this judge is a former federal prosecutor—he’s a good judge. I have every confidence that he is going to do everything he can to get a great result.”
Similar to West Virginia, opioid manufacturers and distributors dispersed 793 million doses of opioids to Ohio in 2012—enough to supply every man, woman, and child, with 68 pills each. Additionally, almost 20 percent of the state’s population was prescribed an opioid in 2016—in a state that currently leads the nation in opioid deaths.
“In something like this, there are so many moving parts,” emphasized Skinner. “On the plaintiff side, it’s not just about money—it’s about what else. How will the drug makers change their behavior? We can negotiate to change how they market, how they run their business. How they distribute. That’s a formula that has to be negotiated internally amongst the entire plaintiff’s side—and then presented to the judge. And then—whether it’s a billion dollars or twenty billion—who gets what?”
Skinner sees this strength-in-numbers approach as the only way small-town municipalities (Chicago has the size to go it alone) can battle Big Pharma. But now that the MDL is set, he affirms that there is definitely cause for cautious optimism.
“I think you’re going to see about a year of the judge putting this into a structure. He basically said if it doesn’t get put together from both sides, he’s going to go full steam ahead—which will require the unveiling of all sorts of documents the companies don’t want anyone to see. He also said something very important: that he wasn’t going to decide any motions until we have a fully developed factual record. For a plaintiff lawyer, that’s delightful.”
The judge also indicated that he will try the first test case in the northern district of Ohio. “The early signs are good,” confirmed Skinner. “I’m optimistic that we’ll see some kind of movement in 2018.”
Until then, Skinner Law Firm will continue to gather as much supportive data as possible related to the impacts of opioids on the local region—going back to 1996, or earlier if need be. They’ve even hired a new person to work specifically on this case.
“Let’s say there are a thousand or fifteen hundred counties across the country (out of thirty-five hundred),” Skinner added. “It allows us to come together and effectively create a mega-law firm with the ability to operate on a scale that can match any of the biggest firms in the world.”