What to do about suspicious orders is focus in opioid case

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Two Ohio counties are asking a judge to find that drugmakers and distributors were not allowed to ship suspicious orders of controlled substances to pharmacies …

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Two Ohio counties are asking a judge to find that drugmakers and distributors were not allowed to ship suspicious orders of controlled substances to pharmacies.

If a judge sides with the request from Cuyahoga and Summit counties, it would clear the way for their governments to assert that drug companies ignored the regulations as a nationwide opioid crisis continued to grow.

Companies are disputing that Drug Enforcement Administration regulations prohibit shipping orders that are deemed to be suspicious.

The request was part of a flurry of court filings in a case in which local governments seek to hold the drug industry accountable for the opioid crisis. Some of the filings were made under seal so the public cannot see them or have redactions at the request of parties in the case.

The motions come days after a key set of data maintained by the federal government was made public in the cases. According to a Washington Post analysis, it shows that 76 billion pain pills were shipped from 2006 through 2012, a span when overdose deaths ballooned. According to federal data, opioids — both prescription drugs such as Vicodin and OxyContin and illicit versions of fentanyl and illegal heroin — were factors in more than 400,000 deaths in the U.S. from 2000 through last year.

More than 2,000 state, local and tribal governments have filed similar claims against the drug industry. Most of them have been consolidated under Cleveland-based U.S. District Judge Dan Polster, who has scheduled the first trial for Oct. 21. The trial is regarding the claims made by the two Ohio counties. The state-court opioid trial of a suit brought by Oklahoma against Johnson & Johnson wrapped up earlier this week, but the judge in it has not yet given a verdict.

Parties in the Ohio case asked the judge to rule on various claims without having to go to trial.

Most of the filings came from defendants seeking to have pieces of the plaintiffs’ claims rejected. Drug distributors say there’s no evidence they conspired to weaken regulations or increase federal limits on how many opioids could be made.

Drugmakers and distributors said there’s no evidence that they illegally pushed unnecessary prescriptions that led to a drug crisis.

Makers of generic opioids, for instance, argued they can’t be sued for making negligent marketing claims because they do not make claims about the safety or efficacy of drugs. And drugmakers moved to exclude testimony that asserts prescription painkillers were a gateway to street drugs such as heroin and fentanyl, calling the idea “too speculative and unreliable as a matter of science, and too remote as a matter of law.”

Defendants asked that jurors not hear any expert testimony on how much it would cost to abate the opioid crisis. According to the filings, one Johns Hopkins University study pegged the cost at as much as $453 billion over 10 years with the biggest portion going to addiction treatment.

The companies also said that claims about anything before October 2012 should be dismissed because of statute of limitation laws.

Still other filings were from companies such as Walmart arguing to be dropped as defendants entirely, and asking the court to exclude testimony from people that parties want to use as expert witnesses and from pharmacies and small distribution companies that argue that conspiracy claims against them cannot be proven.

The counties told the court the opioid crisis is indisputably a “public nuisance,” as defined by law, noting that even drugmakers acknowledge it’s the deadliest drug epidemic in U.S. history and has devastated families and communities.

“Defendants may dispute that their conduct was a contributing cause of the opioid crisis or that they bear legal responsibility for abating the nuisance,” they wrote. “But they cannot deny that the nuisance itself exists.”


Mulvihill reported from Cherry Hill, New Jersey.


Follow Julie Carr Smyth at http://www.twitter.com/jcarrsmyth and Geoff Mulvihill at http://www.twitter.com/geoffmulvihill

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