While state and local governments are filing a profusion of suits against drug companies to recoup costs of the opioid crisis, the trend has been slow to take hold in New Jersey. But opioid litigation is seen as having strong prospects if it can zero in on malfeasance by drug manufacturers and distributors, some observers said.
A half-dozen states have filed suits against drugmakers over the opioid crisis, and New Jersey is part of a coalition of 41 states that is investigating the role of pharmaceutical manufacturers and distributors in the growth in addiction to opioids. But even as Gov. Chris Christie has made fighting drug addiction a top priority for the remainder of his term, Attorney General Christopher Porrino indicated on Monday that the state is taking a cautious approach toward deciding whether to address the problem through litigation.
“We’re taking a hard look at the advertising and marketing practices of opioid manufacturers in New Jersey. We’ll decide what, if anything, to do based on the outcome of that investigation,” Porrino said.
Meanwhile, a growing number of cities have sued opioid manufacturers and distributors, including Chicago, Cincinnati and Louisville, Kentucky. In the northeastern United States, Waterbury, Connecticut, filed a suit in state court in August, accusing drug companies of conspiracy to misrepresent the safety and proper use of opioids. And in greater Philadelphia, Bensalem Township and Delaware County have each announced plans to bring such suits.
In New Jersey, Paterson announced Friday that it had retained Scott & Scott of Colchester, Connecticut, to file a suit against opioid manufacturers. And in August, Toms River said it hired Motley Rice of South Carolina to file an opioid suit on its behalf.
Domenick Stampone, Paterson’s corporation counsel, says his city’s first responders must cope with an influx of drug users from all over the region, and they administer Narcan, an opiate antidote, several times a day. Many people who obtain opioids by prescription later move on to use illegal drugs, he said.
Stampone said pursuing the suit enjoys widespread support in Paterson and Monday’s resignation of Mayor Jose Torres would not prevent it from being filed. Torres pleaded guilty to charges that he instructed city employees to perform work on a property owned by members of his family.
Paterson’s suit is to be filed “imminently” in state court and will demonstrate that drug companies did not fully disclose their products’ highly addictive nature to physicians, Stampone said. The city was drawn to Scott & Scott because that firm’s Judy Scolnick intends to work on the case along with Lee Goldsmith of Cohn Lifland, who participated in landmark litigation by cities against the tobacco industry in the 1980s, said Stampone.
More New Jersey opioid suits could be on the way. Stampone said a few other cities and counties got in touch with him to seek information after Paterson announced that it hired Scott & Scott.
Janssen Pharmaceuticals of Titusville, a subsidiary of Johnson & Johnson, is named as a defendant in many of the opioid suits. The company disputes the suits’ allegations and said it is committed to the safe usage of its products.
“We recognize opioid abuse is a serious public health issue that must be addressed,” company spokesman William Foster said. “At the same time, we firmly believe the allegations in these lawsuits are both legally and factually unfounded. Janssen has acted responsibly and in the best interests of patients and physicians with regard to these medicines, which are FDA-approved and carry FDA-mandated warnings about possible risks on every product label. Janssen is committed to providing health care professionals with complete and accurate information on how to prescribe our opioid medications, which give doctors and patients important choices to help manage the debilitating effects of chronic pain, and we are continuing to work with stakeholders to support their safe and appropriate use.”
The suits filed against makers and distributors of opioids by local and state governments have relied on a variety of legal theories, including fraud and public nuisance theory, said Carl Tobias, who teaches products liability law at the University of Richmond School of Law. He thinks some of the cases might find traction, although courts will likely reject some of the various causes of action being presented.
“I think they may be able to persuade some of the judges. I think the underlying behavior is problematic—the allegation that the companies understated the seriousness of the problems and promoted the sale [of drugs] vigorously all over the country and certainly in the states that have sued. It seems there has to be some way to get at that behavior,” Tobias said.
The crop of opioid suits is “not dissimilar to” the tobacco suits that many cities and states filed in the 1980s, said John Jacobi, faculty director of the Center for Health and Pharmaceutical Law and Policy at Seton Hall University School of Law. Many cities and states saw significant recoveries from tobacco litigation, but the cases were largely settled, so no courts ever evaluated the plaintiffs’ legal theories, Jacobi said. One difference in the latest suits is that they are more complex because pain medication, unlike cigarettes, has a worthwhile purpose, Jacobi said.
Opioid-related suits that have been filed have named several drug distributors as defendants, in addition to manufacturers, doctors and pharmacies.
“I would like to think in settlement negotiations that we can separate the wheat from the chaff,” Jacobi said. “The good thing would be if these litigations put a spotlight on distributors, pharmacies and manufacturers to encourage them, to force them to do the right thing, to make sure opioids travel through the chain of commerce in a way that doesn’t hurt people. If that happens, that’s a great outcome,” Jacobi said.