Support The Bulwark and subscribe today.
  Join Now

‘They Had No Intention of Becoming Addicts’

Why the upcoming opioid lawsuit could lead to a $1 trillion settlement.
August 22, 2019
‘They Had No Intention of Becoming Addicts’
(Photo illustration by Hannah Yoest.)

Last year in an interview, Jerry Craig, the executive director of the Summit County Alcohol, Drug Addiction and Mental Health Services Board said he wasn’t sure exactly where the addiction trend was heading. The Ohio county’s main city, Akron, had seen a slight downturn in the number of  opioid drug overdoses, but a new mix of the opiate-based pills with methamphetamine, heroin, fentanyl, and carfentanil has made the future hard to predict.

“When people are addicted, they’re looking for the next high,” Craig said. “This isn’t your shake and bake stuff people were making 10 years ago. It’s Walter White grade.”

Though Craig probably didn’t realize it, his reference to a commonality between Akron and Breaking Bad wasn’t crazy at all. The city really does find itself in a place these days where ambulances are still picking up dead drug addicts, where dealers and pharmacies sometimes sell similar products, and where too many children need new homes. Places where people realize sometimes whoever is knocking on the door is the danger.

Walter White-land, to be sure. Akron fire chief Clarence Tucker experienced first-hand how prescription pain pills can lead to addiction when he was prescribed OxyContin for back pain. After just a few days, he went back to his doctor and told him he thought he was getting addicted: “I can’t take these,” he told his doctor, “It’s getting me to the point where I am not functional.”

“In so many cases in this opiate crisis,” Tucker continued in a legal deposition this past January, “it’s very easy for someone to take their medication prescribed by their doctor, take it exactly as it was prescribed, but then when you think you’re done with it, you’ve got a problem. You can’t walk away. You’re addicted.”

Come October, Summit County will move into the forefront of the civil lawsuit that is the largest in U.S. history, with Tucker and many other Summit County residents and leaders set to testify. The federal judge overseeing the huge conglomerate of cases, Judge Dan A. Polster, has scheduled this “test case” scenario, meaning that Summit and Cuyahoga counties (Cleveland) will go to trial in front of a jury to determine if the pharmaceutical companies and distributors harmed the public with their drugs being over-prescribed with their knowledge. And if the jury finds they did that, how much they owe these counties for such malfeasance.

The judge has kept most evidence sealed and secret for the past 20 months he has been overseeing this conglomerate of cases, and this public “bellwether trial” involving these two Ohio counties has the possibility of blowing the doors wide open. What makes this lawsuit unique, for such a high profile case, is the absence of political ideology on either side. It is about people dying from drug addiction, and trying to figure out whether a multitude of business interests are responsible.  

This “multidistrict litigation,” or MDL—a process where federal court consolidates similar cases in a single court—will be the largest civil lawsuit in U.S. history. There are more than 2,000 cities and counties and states as plaintiffs, and more than 20 pharmaceutical, distribution and retail companies as defendants. So far, about 500 depositions have been taken, more than 50 million pages of documents filed, and about 20 national addiction and health care “experts” set to testify if called.

If this test case does go through for the seven weeks in October and November, it will likely set the bar for what the other 2,000 or so cities, counties and states—and the defendants like OxyContin maker, Purdue Pharma—see as their options. Meaning, seeing how a jury digests a complicated case that involves close to 50,000 overdose deaths a year nationwide, huge costs to local governments dealing with it, and determining if the blame is on the Big Pharma or Big Government.

In other words, both sides will be looking at the results from this bellwether test and determine if settling or continuing to stay in court is the best option. Already, some of the defendants have opted for the first choice. Drugmakers Endo International and Allergan reached tentative settlement this week to pay a combined $15 million to Cuyahoga and Summit counties and keep them away from the jury.

That may not seem like much money, but when two midsize defendants are willing to pay $15 million to two midsize counties, and then extrapolate that over more than 2,000 other plaintiffs and 20 or so defendants, the calculations of what this MDL is worth becomes huge. Some are thinking settlements eventually could run into the trillion dollar range. 

Then there is the matter of how much everyone gets. There is already a dispute on that part, as the cities and counties want to control the settlement money, while the state attorneys general think they should. Polster is scheduled to rule on that issue in the next week. 

But the bigger question concerns how juries will see these cases. Theoretical experts can pontificate that 135 people die each day from opioid drug overdoses—nearly 50,000 a year nationally—but juries are going to know families down the street and friends of friends who have suffered from it. And we also live in a social media time where finger-pointing and blaming is more common than not.

We could make this more complex, but we won’t. The pharmaceutical businesses claim they were just making (or distributing) a pain medication that the federal government legally approved and doctors were prescribing it legally, mostly. The cities and counties and states assert that the pharma companies knew their product was addictive and yet still pushed it into the marketplace.

These government agencies’ lawsuits claim the costs of these opiate addictions—law enforcement, medical care, fire department spending, child foster care, court and prison costs—have put them in a cash bind and that the defendants should pay those costs.

The plaintiffs, meanwhile, say that they already have. One done by Thomas G. McGuire, a professor of health economics at Harvard Medical School, found that Summit County saw its expenses go up by about $1 billion since 2006 because of costs associated with drug addiction. But the number goes down significantly when trying to measure the costs from the pain med companies’ alleged “mismanagement,” meaning they’re marketing the drug as non-addictive and pushing doctors to prescribe it as patients who don’t need it.

When that is figured in, the cost comes down to $68.8 million in Summit County’s expenses.

 In 2006, McGuire found, Summit County spent $400,000 on child services with opioid addiction as part of the cause for the care. That had jumped to $5.5 million in 2018, with a total cost to the county of $37.9 million over those 13 years. The rate of infants born addicted to opiods in Summit County had gone 2.9 per 1,000 births between 2004 and 2008, to 13.6 per 1,000 between 2011 and 2015.

What a jury believes of the testimony or studies presented is difficult to predict. These cases can be complicated and emotional, but a jury’s perception of the evidence can be much different from that of academics and lawyers. What has the pharmaceuticals nervous is the personal stories that jurors will hear. And how those jurors may be in the mood to make a statement.

In Akron Police Chief Kenneth Ball’s deposition, he routinely answered that in July 2016, “We had 33 people die that month.” One was a call he dropped in on, and “there were two people who had died of overdose deaths … but there was a third person [alive] who was trapped under the bodies for multiple days because she was unable to extricate herself.” Paramedics had to pull her out from under the dead bodies to transport her to the hospital.

“There’s been a tremendous negative impact on our community,” Ball continued. “And it is much broader than Akron. It’s pretty much been in the entire United States where addiction has increased dramatically, and the effects of addiction are impacting communities is so many different ways.”

The chief of police in Barberton, a smaller city in Summit County, said in an interview in December 2017 that the pharmaceutical companies “owe us an apology.” 

“They absolutely knew what they were doing,” said Chief Vince Morber. “Their business practices, the way they did it, the way they marketed it.”

There here have been big mass torts cases in the past—the tobacco settlement of the 1990s, NFL concussion settlements with retired players, the asbestos building material harm cases—but none has been like this. The tobacco settlement reached more than $200 billion over more than 25 years, and these opioid cases may quintuple that amount. This “multi-district litigation” (or MDL) has about 2,000 government agency plaintiffs who have formally sued, but that could rise to 20,000 if settlement talks move further down the road.

So that’s a lot of cities and counties and states and a huge amount of lawyers hired. They will all want to get paid.

Harry Nelson, author of The United States of Opioids, wrote in Forbes recently that the big problem of this huge MDL litigation could be that “the single biggest problem with our legal system may be the openness that enables lawyers to turn events like the opioid crisis into feeding frenzies.”

But Peter Weinberger, a Cleveland attorney and co-liaison for the plaintiffs’ side, disputes that claim. “This is the first time I’ve ever been involved in a case where the other two brackets of government—Congress and the federal agencies—didn’t act to prevent the epidemic,” he told me. “They left it to the judicial branch to solve it all and provide a remedy.”

And there have been some who contend that having Summit and Cuyahoga counties as the important, bar-setting cases are not good examples, that they are more outliers with economic problems unrelated to to opioids. Weinberger disagrees.

“The reason these counties work is they have all the elements of the problems the cities and counties and states are alleging,” he said. He pointed out that increased costs in law enforcement, neighborhood degradation, social services rendered, increased health care costs can all be linked to the opioid epidemic. 

“[These counties] are good examples in that they were severely and significantly impacted by the excessive quantities of pills that were shipped into these counties by the defendants,” Weinberger said. 

In 2017, when the Summit County case was first filed, Dan Horrigan, the mayor of Akron, said the crisis had become “a gut punch to the community, and we need to be able to get a handle on it.” He said “there is a fire going on and it needs more water to put it out.”

But in many ways, this fifth largest city in Ohio (and 119th nationally) is what it is, a city with little growth but without great decline either. And it raises the question: How much of the crisis can be blamed on Big Pharma, and how much is related to the demographic changes that are common to the Rust Belt and similar areas? Is it possible to measure the impact of population decrease and the decline of industry?

For roughly 80 years, Akron was the center of the global rubber and tire industry. Four of the world’s five largest tire manufacturers were headquartered there—Goodyear, Firestone, B.F. Goodrich, and General Tire. From 1910 to 1920, the population grew from about 70,000 to 208,000; it was the fastest growing city in the entire nation. It’s population now (198,000) is about the same as it was in 1920; the county is at 540,000 people.

In 1920, it was building half of the world’s tires. But by 1982, not a single passenger tire was built in the city.  The impact on the city’s economy, culture, and psyche was profound, and the city recognizes that.

“Right now, we have plenty of houses that people don’t want and not enough houses that people do want,” the city wrote in a study about its future two years ago. “As our neighborhoods are abandoned, decline and become hollowed out, access to social and economic opportunities diminishes along with the population:  the jobs disappear, the doctor’s offices disappear, the grocery stores disappear—relocated, often, to a distant and increasingly inaccessible locale.  To pretend as though the economic and social well-being of city residents is not directly impacted by population decline is to turn a blind eye to reality itself.”

In covering this opioid crisis, the media has too often relied upon standard cliché places to do their TV stand-ups or the newspaper datelines, usually from some small town in West Virginia. While Appalachian states have had high percentages of opioid overdoses and addictions, the big opiate addiction numbers and socioeconomic effects are in the Midwest big cities and suburbs.

According to the federal Centers for Disease Control and Prevention, there was a 54 percent increase in overdoses from July 2016 through September 2017 in the major metro areas in mostly Midwestern states—a chunk of the country that includes Akron, Chicago, Indianapolis, Milwaukee, Cleveland, and Columbus, Ohio. 

That’s why this Akron case has greater meaning. In terms of poverty level, Akron’s educational attainment, household income, unemployment levels, and racial makeup are very close to U.S. averages.  What that means for this lawsuit is that the point made will be that if overdoses from opiate addiction are happening in big numbers in Akron, this is a sign of a larger problem in the U.S.  

But Akron does have some addiction history, and that may be a clue to this current addiction mess. It is where Alcoholics Anonymous started in the 1930s, and AA founder Dr. Bob Smith’s house on Ardmore Avenue has been designated a National Historic Landmark.. In the 1990s, during the aftermath of the first Goodyear layoffs, Summit County known as the “Meth Capital of Ohio,” ranking third in the nation in the number of registered meth sites.

According to the U.S. Drug Enforcement Administration nearly 3.4 billion pills were supplied to Ohio from 2006-2012. Summit County got 168 million of those. That’s about 44 pills per person per year. The Akron area is a little below average in the pills per person, when compared to other Ohio counties, but near the top in terms of total opioid pills that were prescribed there.

For example, Logan and Mingo counties in West Virginia have much larger pill per person per year numbers—179 and 203 each—but their total pills prescribed were 45 and 38 million each, about one-fourth of Summit County prescriptions. And their populations are only about 5 percent of their northern neighbor (the Appalachian joke many years ago was that the 3 R’s in West Virginia schools were “Readin’, Ritin’, and Route 21 to Akron”). 

What the jury will decide is whether those legal pill numbers had an effect on the addiction numbers. And the Big Pharma defendants will more than likely point out that the recent decline in overdoses and emergency room treatment are the result of better law enforcement, not their prescription pill shipments. In 2018, Summit County hospital emergency rooms reported about 1,300 visits for drug overdoses. That’s a big drop from the 2,312 visits in 2017 and 2,431 visits in 2016.

The decline in overdose deaths is even more so. In 2016, 340 people died in Summit County after overdosing on drugs, and dropped to 269 in 2017. In 2018, there were “only” 108 suspected overdoses deaths.

How does that play out in average life? That what the jury will hear about, and that’s why the pharmaceutical companies are uneasy. Most of the examples of ODs aren’t tied so much to bad behavior on the part of the addicts themselves, but starting with a prescription for back pain or a tooth extraction. 

In 2011, two former University of Akron football players – Tyler Campbell and Chris Jacquemain—died of heroin overdoses. They both got started on pain pills because of football shoulder injuries, and that pain med addiction grew into heroin addiction.  Both were from suburban middle-class families in Columbus and Cleveland; Jacquemain was a quarterback who had lots of college scholarship offers, Campbell was defensive back walk-on without any offers. Both died in their early 20s.

Sam Quinones wrote about the Akron college football addiction problem in his best-selling book on opioids called “Dreamland: The True Tale of America’s Opiate Epidemic.”

The coaches and trainers, former University of Akron wide receiver Jeremy Bruce said, felt pressured to field a winning team as the school opened its new stadium [in 2009]. After the games, some of the trainers pulled out a large jar and handed out oxycodone and hydrocodone pills — as many as a dozen to each player. Later in the week, a doctor would write players prescriptions for opiate painkillers and send student aides to the pharmacy to fill them. “I was on pain pills that whole season — hydrocodone or oxycodone. I was given narcotics after every single game, and it wasn’t recorded. It was like they were handing out candy,” Bruce told me.

By the end of the 2009 season, the Akron Zips football team was a poster squad for America’s opiate epidemic. Not only was [Chris] Jacquemain dismissed for issues related to his addiction, but as the season wore on and the injuries mounted, Bruce said, “I would say 15 to 17 kids had a problem. It seems that most who had an addiction problem had an extensive problem with injuries as well.”

Toward the end of the season, [Bruce] said, players had learned to hit up teammates who had just had surgery, knowing they would have bottles full of pills. Meanwhile, a dealer from off campus sold to the players, visiting before practice sometimes, fronting players pills and being paid from the monthly rent and food allowance that came with their scholarships.

Years later, in speaking of his son Tyler’s death, Wayne Campbell told the Cleveland Plain Dealer, “Looking back now, it looked to me like he was trying to get out of a room, but couldn’t find the door.”

And it is statements like that that will more than likely resonate greatly with a jury. There will likely be many family members who will testify in federal court in Cleveland about their loved ones dying. That it all started with a doctor’s visit, and before they knew it, junior was hooked on prescription pills first and that led to heroin.

That’s where this huge legal traffic jam will likely get sorted out; personal experiences going front and center rather than charts and graphs from academics showing numerical increases.

Julie Barnes, the executive director of Summit County Children’s Services, said in her recent deposition that “dealing with opiates has been one of the biggest challenges we’ve had with our clientele … These are very complex issues that come with dealing with the case involving opioids. “[We’ve had cases] where we’ve had a client die [of an overdose] and then, within 24 hours, the spouse of that client died. Relapses are very high. Overdoses are very high.”

And in the end, it might be stories like this one below that moves the pendulum closer to settlement. In his deposition, Tucker remembered talking to a fellow city employee a few years ago about his bout with prescribed opiates. The man had been involved in a car accident, and had also been prescribed opioids by his doctor. The man had no history of any alcohol or drug abuse. “He told me he took the drugs—drugs as prescribed—until he reached a point where he was no longer needing to take those drugs.”

“He then [told me] me couldn’t figure out what was wrong with him. He felt sick, he couldn’t function … and then he realized, ‘You know what, I think I’m addicted to this.’”

“I think what we are talking about is people finding themselves trapped,” Tucker continued. “They’re addicted. They didn’t intend to go out and become addicts. They didn’t intend to go out and do something illegal. They had no intentions of becoming addicts to some drug. But it still happens, and that is the problem.”

Daniel McGraw

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1.