Bennington files suit vs opioid firms

Posted October 2nd, 2019.

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Other Vermont towns consider joining

By Jim Therrien, Bennington Banner
BENNINGTON — The town is now one of hundreds of local, county and state governments that have filed suit seeking damages from the companies involved with opioid pain medication production, distribution and sales.

And Bennington could be joined in its suit by other Vermont communities, as attorneys representing the town have given a presentation to officials from several municipalities and are following up on those discussions this week.

According to Joanne Cicala, managing partner of The Cicala Law Firm, based in Texas, and Grant Morris, of Sanford Heisler Sharp, LLP, who are acting as co-counsel for the town, representatives of about 10 Vermont communities attended a meeting two weeks ago during which Bennington Town Manager Stuart Hurd also spoke.

The law firms also have been involved in suits against opioid-related firms that were filed in other states. Sanford Heisler Sharp approached several Vermont communities earlier this year about suing over the effects and costs of addiction, and Bennington was the first to decide to participate.

First in Vermont

Bennington is now the only Vermont community to file suit as a municipality to recover the local costs of battling the opioid addiction epidemic, but several others are considering it, the attorneys said Wednesday.

The suit alleges, as have numerous other suits against opioid manufacturing and related firms, that pain medications like OxyContin were over-prescribed and deceptively advertised or promoted, leading to widespread opioid addiction around the country.

Since the pills were first marketed during the late 1990s, addiction and overdose rates around the country have risen, often dramatically. The suit Bennington has filed seek to recoup the local costs related to addiction and to provide funding for addiction treatment services.

With settlements involving companies like Purdue Pharma, the manufacturer of OxyContin, and Johnson & Johnson being concluded or proposed in some of the hundreds of suits, Cicala said the situations “is dynamic and fluid,” which makes it “a good time to act” for a Vermont municipality not yet involved in a suit.

While many states have also sued firms like Purdue, the attorneys said the difference is that any awards in the municipal suit would go directly to the town, rather than be distributed through state government.

The Bennington Select Board approved filing suit in July, after a review of the retainer agreement by town counsel.

“Our decision was important locally,” Hurd said Wednesday. “As it turns out, we are in a leadership role. I think Vermont communities have a stronger voice together.”

Select Board Chairman Donald Campbell said, “Any community that thinks they don’t have a problem is fooling themselves. While the roots of what lead an individual to opioid addiction vary wildly, over-prescription and aggressive marketing to physicians can be laid at the drug companies’ feet. Bennington strives to be a town that faces reality and tries to help its people, not a town that denies reality and waits for somebody else to fix the problem.”

According to the retainer agreement, the town will pay for the representation only if damages are awarded and won’t have any “upfront” costs in filing or pursuing the action.

If other Vermont communities join, Cicala said, there will be a motion to amend the compliant to reflect that — likely sometime during October.

Morris said the suit was filed in U.S. District Court Northern District of Ohio, under Judge Dan Polster, where hundreds of opioid-related suits are being consolidated.

In the filing, the 175-page complaint names dozens of defendants, including members of the Sackler family, owners of Purdue Pharma; several other pharmaceutical companies and related corporate entities; as well as Walmart Pharmacy, CVS Rx Services Inc., Vermont CVS Pharmacy, Rite Aid pharmacy companies, Eckerd Corp., The Pharmacy Inc.; Price Chopper Operating Co. of Vermont Inc. and Golub Corp; and Walgreen Co, among others.

Also named are major pharmacy benefits management firms, including Express Scripts Inc. and related entities; Caremark Rx, LLC, and related companies, and Optum Inc. and related firms.

According to the suit, the three prescription benefits management firms at one time managed pharmacy benefits for 95 percent of the U.S. population, or 253 million, and now manage benefits for 75 percent of the population.

Cicala said an important aspect of the complaint focuses on the benefit management firms, which she said “provided the grease for this machine to function,” referring to alleged widespread efforts to fraudulently promote the use of opioid medications for billions in annual profits, despite the risks and consequences of addiction.

Express Scripts and others were “cozy” with firms like Purdue Pharma, she said, which led to the prescription management companies giving the medications from the manufacturer preferential treatment “over less addictive alternatives.”

‘Caused an epidemic’

The suit alleges that the defendants caused “an opioid epidemic that has resulted in economic, social and emotional damage to virtually every community in the United States and tens of thousands of Americans. It is indiscriminate and ruthless. It has impacted across demographic lines, harming every economic class, race, gender and age group. It is killing more than 115 Americans every day.”

The suit states that, according to the U.S. Centers for Disease Control and Prevention, prescriptions and illegal opioids account for more than 60 percent of overdose deaths nationwide, “a toll that has quadrupled over the past two decades.”

The national costs for healthcare, lost productivity, addiction treatment and criminal justice involvement due to opioid misuse is “$78.5 billion a year,” according to the suit, which cites CDC statistics.

“Prescription drug manufacturers, wholesalers/distributors, pharmacy benefit managers (PBMs), and pharmacies have created this epidemic,” the suit alleges. “The manufactuers make the opioids and lie about their efficacy and addictive properties. The wholesalers distribute the opioids from the point of manufacture to the point of delivery to the patient. The PBMs control, through their pharmacy plan design and formulary management, which drugs go where and how they are paid for. And the retail pharmacies serve as the final link in the chain by releasing the opioids into the public.”

Each of the defendant groups “profits enormously from the movement of the opioid products,” the suit contends. “Each has incentives to move certain drugs over others. Defendants themselves create the incentives and share in their perversity — usually without discourse to those who reasonably rely on defendants to abide by their federal, state and common law duties. They do so at the expense of plaintiffs and communities like it nationwide.”

In specific references to Bennington’s costs, the suit states that the rate of overdose deaths in Bennington County rose from 6.78 per 100,000 people in 2003 to 14.5 deaths per 100,000 in 2017.

The town of Bennington averages about 10 fatal opioid overdoses per year, the complaint states.

“Opioids are killing Vermont citizens at a skyrocketing rate, the suit states, “and a common origin is prescription opioids,” with many people becoming addicted and later turning to illegal drugs like heroin when they can no longer get a prescription.

The listed costs to the town itself include fire and emergency services costs, the burden on local law enforcement concerning opioid-related crimes; and the additional costs for courts, social services, schools, treatment centers, intervention programs, clinics, and the costs of health insurance.

“Nearly every aspect of the town of Bennington’s services and budget has been significantly and negatively impacted by this defendant-made epidemic,” the complaint alleges.

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