Wave of Kentucky counties file lawsuits against drug distributors for creating ‘a public nuisance’

Fiscal courts in more than a dozen Kentucky counties filed separate lawsuits in federal court Tuesday and Wednesday seeking damages against wholesale distributors of painkillers called opioids for allegedly inflaming the state’s drug problem.

The lawsuits say that certain distributors registered with the U.S. Drug Enforcement Agency “unlawfully sold millions of prescription opioids” in each county, resulting in the widespread diversion of the drugs to the black market and creating a public health and safety crisis.

The companies’ conduct worsened abuse, addiction and overdoses and drove up costs for jails, law enforcement, medical treatment and other needs, the complaints allege.

“Everything is costing the taxpayers millions of extra dollars a year,” said former state Rep. Mike Bowling, a Middlesboro attorney who is helping coordinate the lawsuits. “It’s just close to breaking down the system.”

As of late Wednesday afternoon, 20 counties had filed lawsuits. They were Anderson, Bell, Boyle, Franklin, Fleming, Pendleton, Shelby, Lincoln, Madison, Henry, Nicholas, Pendleton, Garrard, Harlan, Knox, Spencer, Union, Leslie, Whitley and Carlisle.

However, Bowling said it’s likely that 90 or more of the state’s 120 counties will eventually file lawsuits.

All the lawsuits name identical defendants: AmerisourceBergen Drug Corp., Cardinal Health Inc. and McKesson Corp.

AmerisourceBergen operates distribution centers in Louisville and, until recently, in Paducah, according to the lawsuits. Cardinal Health. has distribution operations through a Radcliff call center, and McKesson operates a distribution center in Louisville.

An executive with the the trade association for pharmaceutical distributors, which includes the three companies as members (among others), said the allegations in the federal lawsuits are misplaced.

“As distributors, we understand the tragic impact the opioid epidemic has on communities across the country,” John Parker, senior vice president of the Healthcare Distribution Alliance, said in a statement. “We are deeply engaged in the issue and are taking our own steps to be part of the solution — but we aren’t willing to be scapegoats. We are ready to have a serious conversation about solving a complex problem and are eager to work with political leaders and all stakeholders in finding forward-looking solutions.”

McKesson Corp. agreed earlier this year to pay a $150 million penalty to the federal government for alleged violations of federal drug law, the U.S. Justice Department announced in January. The case was a civil, not criminal, matter.

The counties allege that unlawful conduct by the wholesale distributors “is responsible for the volume of prescription opioids plaguing” communities. The counties seek a trial by jury and compensation for past and future damages and costs “to abate the ongoing public nuisance caused by the opioid epidemic.”

A consortium of law firms is handling the lawsuits for counties. The firms are paying the costs of the litigation, so it won’t cost counties anything, said Bowling, who is involved in several of the lawsuits.

If the counties are able to prove the drug distributors are liable and win damages, 70 percent of the money would go to counties and 30 percent to the firms, Bowling said.

“It’s obviously not going to be an easy battle, but it’s something they can do to try to help the people in their counties,” Brian Roy, executive director of the Kentucky Association of Counties, said of local officials’ interest in pursuing the complaints.

A growing number of states, cities and counties have filed civil cases against manufacturers, distributors and large drugstore chains that make up the $13 billion-a-year opioid industry, The Washington Post reported in July.

In his statement on behalf of the pharmaceutical distributors, Parker said, “Distributors are logistics companies that arrange for the safe and secure storage, transport and delivery of medicines from manufacturers to pharmacies, hospitals, long-term care facilities and others based on prescriptions from licensed physicians. We don’t make medicines, market medicines, prescribe medicines or dispense them to consumers.

“Given our role, the idea that distributors are solely responsible for the number of opioid prescriptions written defies common sense and lacks understanding of how the pharmaceutical supply chain actually works and how it is regulated.”

Richard Ausness, a University of Kentucky law professor who teaches a class on product liability litigation, said the companies have a statutory duty to monitor the distribution of the painkillers. In June, the U.S. Circuit Court of Appeals in Washington, D.C., upheld the DEA’s authority to take prescription drug companies to task for failing to investigate, stop and report painkillers that were diverted to the black market.

“I think the counties can make a strong case that distributors had a duty to do a better job than they did, and this breach of duty caused this harm to them, to the counties,” Ausness said.

But do the distributors have a duty to protect counties from the economic costs of opioid addiction?

“If you frame it that way, it’s not as strong as saying you have a duty to people who use the products to prevent them from becoming addicted,” Ausness said.

The rash of suits filed against painkiller manufacturers and distributors is similar to the suits filed against tobacco companies in the 1990s. In 1998, the tobacco industry settled those suits and agreed to pay $200 billion.

“It’s a lot harder to defend 10 suits than to defend one,” Ausness said of the complaints filed Tuesday. “So clearly part of the strategy is to wear them (distributors) down, to run up the legal costs.”

Drug overdoses are the leading cause of death for Americans younger than 50, primarily because of opioids, The New York Times reported last month.

Overdoses killed more people last year than guns or car accidents, and are doing so at a pace faster than the HIV epidemic at its peak, the Times reported.

Kentucky is no stranger to the grim numbers. The state saw a record high of 1,404 drug overdoses in 2016, with prescription opioids called oxycodone and hydrocodone involved in 19 and 16 percent of the deaths, respectively, according to the state Office of Drug Control Policy.

And a recent study found that the rate of deaths from poisoning — which primarly means drug overdoses — in Kentucky’s Appalachian counties was 141 percent higher than the national figure.