Dallas lawyer Jeffrey Simon recently filed a first of its kind lawsuit in a Texas federal court against several of the nation’s largest drug manufacturers. His client alleges they are complicit in North America’s addiction to prescription pain killers.
Simon, a partner in Simon Greenstone Panatier Bartlett represents an East Texas county that is bringing public nuisance, fraud and racketeering allegations against several major drug makers including Purdue Pharma and Teva Pharmaceutical Industries. He spoke with Texas Lawyer about how he found a client willing to take on the drug manufacturing industry, why he filed the case in the Eastern District of Texas and how he expects to prove up damages in what could be an extremely challenging case.

Texas Lawyer: This is the first lawsuit of its kind filed in a federal court in Texas. Normally the Texas attorney general’s office has represented counties and the state in litigation against big manufacturers. How did Upshur County become the firm’s client?
Jeffrey Simon: It’s not clear whether or not the State of Texas will file an action related to the pharmaceutical industry’s role in creating an opioid epidemic. Several states around the country have filed lawsuits making that allegation and it has been reported that the State of Texas has joined a working group to investigate the opioid pharmaceutical industry’s conduct. However, much of the financial damage done by the opioid epidemic as a result of the human misery that the opioid epidemic causes has been borne at the county level. Upshur County is one of those counties and it wanted to pursue rightful claims at the behest of its taxpayers, which have been bearing a financial burden from the opioid epidemic.

TL: Your firm also represents six additional East Texas counties that plan to sue pharmaceutical companies for their alleged role in the country’s opioid painkiller epidemic. What’s your best argument that the defendant companies that make a federal regulated product that can only be prescribed by doctors had a role in the drug crisis?

Simon: I prefer to stick to the allegations as made in the complaint. But as a general rule, the fact that a drug is approved for some purpose does not give the drug manufacturer or distributor carte blanche to promote and market that drug in an irresponsible manner.

TL: U.S. District Judge Rodney Gilstrap of Marshall, who is famous for his handling of the nation’s largest patent docket, will preside over the case. Eastern District juries also have a reputation of being friendly to plaintiffs. Is it any coincidence you chose the Marshall Division as your venue for this litigation?
Simon: The reason that that case was filed in federal court in the Marshall division is because there is complete diversity in that the plaintiff is a Texas resident of Upshur County and the defendants are residents of other states, thus giving rise to federal court jurisdiction rather than state court. And Upshur County is in the Marshall division. That’s why the case was filed there.

TL: How do you expect to prove damages in this case?
Simon: Again, damages are alleged in the complaint, but we will prove that there have been significant damages associated with the cost of health care that arises from opioid abuse. There are well-done published studies that prove that opioid abusers have four times as much health care costs as non-opioid users and that the cost of criminal justice drug enforcement has risen dramatically as the result of the opioid epidemic. The cost of treating opioid addicts is very high both in terms of treating overdoses and treated the addiction itself. [Studies estimate] that the annual cost of the opioid epidemic in the United States is over $70 billion dollars.

TL: If you eventually prevail in this case, I would expect a demand that the defendants change their business practices. What would you ask of them?

Simon: Opioids, we allege, were marketed using techniques successfully employed for other less addictive, less potent prescription medicines that were inappropriate for drugs as powerful and as addictive as opioid drugs. We contend that opioid drugs should not have been marketed as being safe and effective and nonaddictive to treat chronic pain and that they should never be promoted in that way.