1 00:00:00,160 --> 00:00:03,559 Speaker 1: The costs of the opioid epidemic are mounting for states 2 00:00:03,560 --> 00:00:06,600 Speaker 1: and local governments. They're paying more for both treatment efforts 3 00:00:06,640 --> 00:00:10,480 Speaker 1: and law enforcement, and they are increasingly trying to recoup 4 00:00:10,520 --> 00:00:13,840 Speaker 1: that money through lawsuits. More than twenty five states, counties, 5 00:00:13,840 --> 00:00:17,599 Speaker 1: and cities are now pressing cases against drug makers, distributors, 6 00:00:17,640 --> 00:00:21,119 Speaker 1: and pharmacy chains. It's an approach that hearkens back to 7 00:00:21,160 --> 00:00:24,360 Speaker 1: the nineteen nineties and the state lawsuits that eventually led 8 00:00:24,400 --> 00:00:28,160 Speaker 1: to a two hundred billion dollar settlement with America's cigarette makers. 9 00:00:28,880 --> 00:00:32,320 Speaker 1: Is the opioid industry going to follow the same legal path? 10 00:00:33,000 --> 00:00:35,519 Speaker 1: We're gonna ask our two guests, Richard Austiness, he's a 11 00:00:35,520 --> 00:00:38,760 Speaker 1: professor at the University of Kentucky School of Law, and 12 00:00:38,880 --> 00:00:42,200 Speaker 1: Jodie Abragan, a partner at KD Walader and former chief 13 00:00:42,240 --> 00:00:46,480 Speaker 1: of staff of the Drug Enforcement Administration. Welcome to you both. 14 00:00:46,479 --> 00:00:50,000 Speaker 1: Thanks for joining us. Richard, Before we get into the 15 00:00:50,440 --> 00:00:53,920 Speaker 1: prospects for success of these lawsuits, can you just give 16 00:00:54,000 --> 00:00:57,120 Speaker 1: us a rough overview of the kinds of allegations we're 17 00:00:57,120 --> 00:00:59,560 Speaker 1: talking about. What what sorts of things have drug makers 18 00:00:59,560 --> 00:01:05,640 Speaker 1: and other panis allegedly done wrong? Well, it's um the 19 00:01:05,720 --> 00:01:09,480 Speaker 1: allegations are that they marketed their products in such a 20 00:01:09,520 --> 00:01:14,000 Speaker 1: way that uh it encouraged addiction or led to addiction 21 00:01:14,440 --> 00:01:17,160 Speaker 1: on the part of many of the users. UH. They're 22 00:01:17,200 --> 00:01:20,039 Speaker 1: actually a number of things that they're accused of doing. 23 00:01:20,840 --> 00:01:24,120 Speaker 1: First of all, misrepresenting the addictive qualities to the f 24 00:01:24,240 --> 00:01:28,399 Speaker 1: d A and later to physicians in order to encourage 25 00:01:28,440 --> 00:01:33,560 Speaker 1: them to UH prescribe these drugs when they weren't necessary. 26 00:01:33,680 --> 00:01:39,080 Speaker 1: And then secondly, their marketing practices UH were such that 27 00:01:40,200 --> 00:01:45,560 Speaker 1: they allowed their distributors to send very large amounts of 28 00:01:46,000 --> 00:01:51,040 Speaker 1: opioids to uh Appalachi in particular, but elsewhere the United States, 29 00:01:51,040 --> 00:01:56,680 Speaker 1: far more than would be reasonably necessary, UH, either knowing 30 00:01:57,040 --> 00:02:02,040 Speaker 1: or suspecting that they were going to be issues sent 31 00:02:02,160 --> 00:02:06,680 Speaker 1: into the black market, and so forth. And Jody, which 32 00:02:07,040 --> 00:02:11,359 Speaker 1: uh sort of sector is most vulnerable here? Are we 33 00:02:11,480 --> 00:02:15,400 Speaker 1: mostly talking about the manufacturers of these drugs? Are we 34 00:02:15,480 --> 00:02:19,560 Speaker 1: talking about the distributors, we're talking about the pharmacy chains 35 00:02:20,360 --> 00:02:23,119 Speaker 1: or or they all sort of equally at risk here. 36 00:02:23,760 --> 00:02:29,639 Speaker 1: And I think that certainly the lawsuits started with manufacturers, 37 00:02:29,680 --> 00:02:32,880 Speaker 1: they moved to distributors. UH. There was some success in 38 00:02:32,919 --> 00:02:36,800 Speaker 1: West Virginia against the Big three distributors, but the lawsuits 39 00:02:36,800 --> 00:02:40,400 Speaker 1: of late have focused on the manufacturers and focused on 40 00:02:40,880 --> 00:02:46,400 Speaker 1: the marketing practices as as Richard just described. However, I 41 00:02:46,440 --> 00:02:51,040 Speaker 1: think that all aspects of the supply chain are at risk. Um. 42 00:02:51,320 --> 00:02:56,000 Speaker 1: There is the significant law enforcement effort with with respect 43 00:02:56,000 --> 00:03:00,000 Speaker 1: to pharmacies, pharmacists and physicians as well, but there are 44 00:03:00,080 --> 00:03:03,760 Speaker 1: just so many of them that I think that law 45 00:03:03,840 --> 00:03:09,160 Speaker 1: enforcement and plaintiffs attorneys have decided that the best, uh, 46 00:03:09,520 --> 00:03:12,880 Speaker 1: the best chance for having an impact is on the 47 00:03:12,919 --> 00:03:17,760 Speaker 1: manufacturers and distributors. Richard, There's been an awful lot of 48 00:03:18,520 --> 00:03:22,800 Speaker 1: talk comparing the situation to what happened with the tobacco 49 00:03:22,880 --> 00:03:27,080 Speaker 1: industry back in the nineties. To what extent do you 50 00:03:27,600 --> 00:03:33,480 Speaker 1: think that as an apt parallel When this story first broke, 51 00:03:33,720 --> 00:03:36,640 Speaker 1: I felt it was closer to the situation that occurred 52 00:03:36,640 --> 00:03:40,040 Speaker 1: with firearms that as far as the theories of liability 53 00:03:40,040 --> 00:03:43,200 Speaker 1: were used. But I think what's what's starting to happen 54 00:03:43,280 --> 00:03:48,160 Speaker 1: now is is this Oklahoma land rush syndrome, and that 55 00:03:48,360 --> 00:03:52,680 Speaker 1: does resemble the tobacco cases. I think, UM, that is 56 00:03:52,720 --> 00:03:57,280 Speaker 1: to say, uh, large numbers of plaintiffs are bringing suit, 57 00:03:57,880 --> 00:04:02,400 Speaker 1: uh not so much expecting to in but to force 58 00:04:02,560 --> 00:04:05,640 Speaker 1: or encourage a settlement, and I think in that respect 59 00:04:05,640 --> 00:04:09,280 Speaker 1: it strongly resembles the what happened in with the tobacco 60 00:04:09,400 --> 00:04:13,080 Speaker 1: cases twenty years ago. Jody, what's your take on that? 61 00:04:13,120 --> 00:04:19,039 Speaker 1: Do you agree that these suits are primarily or at 62 00:04:19,120 --> 00:04:22,680 Speaker 1: least to a large degree, focused on winning a settlement 63 00:04:22,720 --> 00:04:27,120 Speaker 1: as opposed to winning a verdict? You know, I think 64 00:04:27,200 --> 00:04:31,240 Speaker 1: I think it's an interesting question. Certainly, uh so many 65 00:04:31,320 --> 00:04:38,000 Speaker 1: communities have legitimate losses. The expenses of caring for addicted 66 00:04:38,040 --> 00:04:42,360 Speaker 1: populations are tremendous, so the losses are real. UM. I 67 00:04:43,200 --> 00:04:49,480 Speaker 1: am not sure whether UM plaintiffs are seeking to affect 68 00:04:49,600 --> 00:04:53,600 Speaker 1: conduct or get money. I suspect it's it really is 69 00:04:53,720 --> 00:04:56,000 Speaker 1: a little bit of both. And if I could just 70 00:04:56,320 --> 00:05:00,640 Speaker 1: UM comment also on your on your question about UM 71 00:05:00,720 --> 00:05:04,279 Speaker 1: how reminiscent this is of tobacco litigation. I think a 72 00:05:04,320 --> 00:05:08,960 Speaker 1: critical distinction is that the manufacturers and distributors and indeed 73 00:05:08,960 --> 00:05:13,680 Speaker 1: pharmacists UM and and doctors who who are being sued 74 00:05:13,760 --> 00:05:17,400 Speaker 1: are for the very large part in the business of healthcare. 75 00:05:17,839 --> 00:05:20,800 Speaker 1: They exist to make people better. They make medicine, they 76 00:05:20,800 --> 00:05:25,520 Speaker 1: distribute medicine, and that really is a critical distinction. Although 77 00:05:25,760 --> 00:05:29,159 Speaker 1: again I agree with Richard that that the parallels are 78 00:05:29,560 --> 00:05:34,000 Speaker 1: striking at first glance, it is. Uh. Well, Richard, let 79 00:05:34,000 --> 00:05:35,720 Speaker 1: me just ask you to sort of pick up on that. 80 00:05:36,480 --> 00:05:39,840 Speaker 1: Is UM trying to decide as Jody was talking there, 81 00:05:40,200 --> 00:05:44,520 Speaker 1: if if your comparison to the gun industry is uh 82 00:05:45,000 --> 00:05:48,440 Speaker 1: is closer or not? Are are we? Um? You know, 83 00:05:48,480 --> 00:05:51,320 Speaker 1: the gun industry is an industry that I think, you know, 84 00:05:51,839 --> 00:05:53,880 Speaker 1: maybe it's not healthcare. They're not trying to help people 85 00:05:53,920 --> 00:05:57,080 Speaker 1: in that way, but it is at least a legal 86 00:05:57,120 --> 00:06:03,760 Speaker 1: product that generally isn't regulated. So, uh, where does where 87 00:06:03,760 --> 00:06:06,440 Speaker 1: do opioid sort of fit in that? Maybe expand on 88 00:06:06,440 --> 00:06:08,280 Speaker 1: what you're saying about it being more like the guns 89 00:06:08,279 --> 00:06:12,360 Speaker 1: than than like tobacco. Well, I was thinking that the 90 00:06:12,640 --> 00:06:17,200 Speaker 1: liability theories they were using, particularly the public nuisance theory, UH, 91 00:06:17,279 --> 00:06:21,560 Speaker 1: fit the gun cases a bit more than the tobacco cases. 92 00:06:21,800 --> 00:06:27,000 Speaker 1: That theory is the assumes that the social costs, the 93 00:06:27,040 --> 00:06:31,600 Speaker 1: healthcare costs, the law enforcement costs are that these communities 94 00:06:31,640 --> 00:06:36,880 Speaker 1: have incurred are directly attributed to the marketing practices of 95 00:06:36,960 --> 00:06:41,080 Speaker 1: the of the particular industry. I don't think that was 96 00:06:41,480 --> 00:06:45,960 Speaker 1: um a common theory with the tobacco cases, but it 97 00:06:46,400 --> 00:06:50,920 Speaker 1: certainly fits the opioid cases. We're talking about the opioid epidemic, 98 00:06:50,960 --> 00:06:54,920 Speaker 1: and in particular the lawsuits by more than twenty five states, counties, 99 00:06:54,920 --> 00:06:58,320 Speaker 1: and cities trying to recoup potentially billions of dollars they've 100 00:06:58,360 --> 00:07:02,279 Speaker 1: spent on treatment efforts, law enforcement, and other expenses. Are 101 00:07:02,320 --> 00:07:04,919 Speaker 1: Our guests are Richard Austiness, who's a professor at the 102 00:07:04,960 --> 00:07:08,040 Speaker 1: University of Kentucky School of Law, and Jodie Evergun, who's 103 00:07:08,040 --> 00:07:11,120 Speaker 1: a partner at CAD Walder and a former official at 104 00:07:11,120 --> 00:07:17,000 Speaker 1: the Drug Enforcement Administration UM. The one defense I've seen 105 00:07:17,040 --> 00:07:21,600 Speaker 1: described for companies in these cases is essentially the UH 106 00:07:21,680 --> 00:07:25,160 Speaker 1: the f d A approved it defense. UH. These are 107 00:07:25,200 --> 00:07:27,920 Speaker 1: products that were approved by the FDA. The warnings were 108 00:07:27,920 --> 00:07:31,240 Speaker 1: approved by by the f d A. How much does 109 00:07:31,280 --> 00:07:37,200 Speaker 1: that shield UH drug manufacturers and others UH in these lawsuits. Well, 110 00:07:37,200 --> 00:07:40,520 Speaker 1: it's it's certainly an argument they can make. I don't 111 00:07:40,720 --> 00:07:43,680 Speaker 1: don't think it would be an absolute defense, but UH, 112 00:07:44,160 --> 00:07:46,880 Speaker 1: it certainly allows the drug companies to say we didn't 113 00:07:46,920 --> 00:07:51,080 Speaker 1: do anything wrong at least in so far as the 114 00:07:51,080 --> 00:07:53,760 Speaker 1: warnings are concerned. Now, that really doesn't go to their 115 00:07:53,800 --> 00:07:57,280 Speaker 1: marketing practices, which I think is involves a separate issue. 116 00:07:57,760 --> 00:08:03,400 Speaker 1: But um, Yeah, unlike the tobacco cases, where cigarettes were 117 00:08:03,440 --> 00:08:07,760 Speaker 1: of course not highly regulated, UH, opioids in particular are 118 00:08:08,640 --> 00:08:11,920 Speaker 1: and the f d A, as you say, proved the 119 00:08:11,960 --> 00:08:18,600 Speaker 1: warnings approved the UM the licensing of the drug, and 120 00:08:19,560 --> 00:08:22,640 Speaker 1: that odd account for something at least it's an argument 121 00:08:22,680 --> 00:08:26,760 Speaker 1: that the drug companies can raise. Well, Richard, they will 122 00:08:26,800 --> 00:08:30,280 Speaker 1: be raising that question that that defense, of course. But 123 00:08:31,520 --> 00:08:33,840 Speaker 1: if you look at this from the perspective of, you know, 124 00:08:34,400 --> 00:08:38,199 Speaker 1: what should they have done according to the plaintiffs, and 125 00:08:38,280 --> 00:08:40,480 Speaker 1: potentially might they be liable for it? What kind of 126 00:08:40,520 --> 00:08:45,400 Speaker 1: actions should these drug companies, the manufacturers and distributors have 127 00:08:45,480 --> 00:08:49,679 Speaker 1: taken to avoid the problem here. Well, certainly they should 128 00:08:49,679 --> 00:08:56,400 Speaker 1: have monitored the UH sales by their distributors. In in 129 00:08:56,480 --> 00:09:00,760 Speaker 1: at least a number of cases, pharmacies and relatively low 130 00:09:01,360 --> 00:09:07,640 Speaker 1: populated areas were purchasing huge amounts of opioids. UM. That 131 00:09:07,880 --> 00:09:10,679 Speaker 1: and in that sense it resembles the gun cases. Uh. 132 00:09:10,760 --> 00:09:12,760 Speaker 1: They should have smelled a wrap. I should have realized 133 00:09:12,800 --> 00:09:16,760 Speaker 1: something is not right here. UH. And the Everett case, 134 00:09:16,800 --> 00:09:20,600 Speaker 1: which was reported in the media recently, is a good 135 00:09:20,600 --> 00:09:26,520 Speaker 1: example of that that. Um, they didn't do anything. They 136 00:09:26,559 --> 00:09:30,719 Speaker 1: didn't inform the FDA. They their own monitoring revealed that 137 00:09:30,800 --> 00:09:35,600 Speaker 1: there was something very wrong, but they didn't do anything 138 00:09:35,679 --> 00:09:38,120 Speaker 1: about it. And of course the planists will say they 139 00:09:38,120 --> 00:09:40,480 Speaker 1: didn't do anything about it because they were making money 140 00:09:40,480 --> 00:09:44,199 Speaker 1: hand over fist selling opioids and had no incentive to 141 00:09:44,240 --> 00:09:47,480 Speaker 1: do anything about it. But it's certainly UM could get 142 00:09:47,480 --> 00:09:50,480 Speaker 1: them into a lot of trouble. Jody Avergant is back 143 00:09:50,520 --> 00:09:53,080 Speaker 1: with us. Jody, I want to ask you you're you're 144 00:09:53,120 --> 00:09:55,880 Speaker 1: in private practice, and I want to know what your 145 00:09:55,880 --> 00:09:59,120 Speaker 1: sense is about about the plane off spar In. In 146 00:09:59,160 --> 00:10:02,640 Speaker 1: these cases the is lawsuits back with tobacco, and now 147 00:10:03,200 --> 00:10:08,320 Speaker 1: go forward when state attorney's general ally themselves with law firms, 148 00:10:08,400 --> 00:10:12,839 Speaker 1: and I'm wondering how much enthusiasm you are detecting from 149 00:10:13,000 --> 00:10:17,800 Speaker 1: the plaintiff side in these cases. Are our law firms 150 00:10:17,880 --> 00:10:22,319 Speaker 1: jumping aboard these these suits. I think that a perfect 151 00:10:22,360 --> 00:10:25,160 Speaker 1: example of how enthusiastic the bar is is the fact 152 00:10:25,160 --> 00:10:28,319 Speaker 1: that Delaware is able to put out a request for proposal, 153 00:10:28,480 --> 00:10:32,720 Speaker 1: meaning that they're they're searching far and wide for law 154 00:10:32,760 --> 00:10:35,880 Speaker 1: firms to do this UM, and there seems to be 155 00:10:35,960 --> 00:10:40,920 Speaker 1: no dearth of of firms willing to jump on this bandwagon. 156 00:10:41,320 --> 00:10:43,200 Speaker 1: I'm just not sure that it is the right way 157 00:10:43,200 --> 00:10:48,040 Speaker 1: to address the opioid crisis. Uh. Certainly, UM. I think 158 00:10:48,080 --> 00:10:50,920 Speaker 1: that plane of c dollar signs and they realize that 159 00:10:51,559 --> 00:10:55,520 Speaker 1: settlements are likely in these cases. UM. The money, frankly 160 00:10:55,640 --> 00:10:59,640 Speaker 1: is just better spent uh for both the companies and 161 00:11:00,280 --> 00:11:04,440 Speaker 1: counties and states to improve prescription drug monitoring programs, to 162 00:11:04,480 --> 00:11:09,240 Speaker 1: put money into treatment um and and really focus on 163 00:11:09,559 --> 00:11:15,000 Speaker 1: addressing the problem. UM. I respectfully disagree with Richard that 164 00:11:15,000 --> 00:11:19,480 Speaker 1: that manufacturers and distributors have been ignoring the problem for ages. 165 00:11:19,600 --> 00:11:22,959 Speaker 1: I think that steps have been taken by most d 166 00:11:23,040 --> 00:11:28,400 Speaker 1: e A registaurants to address the problem. Um Uh. Perhaps 167 00:11:28,760 --> 00:11:32,839 Speaker 1: um not as quickly as the problem was developing, which 168 00:11:32,880 --> 00:11:37,040 Speaker 1: is why there is an opioid crisis now. But UM 169 00:11:37,080 --> 00:11:40,800 Speaker 1: I think that it is um too simplistic to just 170 00:11:41,000 --> 00:11:45,200 Speaker 1: lay it at the feet of manufacturers and distributors, because 171 00:11:45,240 --> 00:11:50,920 Speaker 1: there are significant intervening circumstances here, such as bad doctors 172 00:11:50,920 --> 00:11:53,959 Speaker 1: who prescribe, or doctors who legitimately believe that their patients 173 00:11:53,960 --> 00:11:58,199 Speaker 1: are in pain, or drug addicts who who really require 174 00:11:58,960 --> 00:12:02,920 Speaker 1: medicine to function, um and and might not have been 175 00:12:02,960 --> 00:12:06,120 Speaker 1: illegitimately getting the products. And then of course there's a 176 00:12:06,120 --> 00:12:09,400 Speaker 1: problem that how can a distributor or a manufacturer know 177 00:12:10,040 --> 00:12:14,200 Speaker 1: when a prescription is ultimately legitimate or not. So it 178 00:12:14,320 --> 00:12:16,640 Speaker 1: is a highly complex problem. Richard, I want to give 179 00:12:16,640 --> 00:12:18,240 Speaker 1: you the last word. We only have about thirty seconds. 180 00:12:18,240 --> 00:12:19,960 Speaker 1: But but but I want to want to let you 181 00:12:20,000 --> 00:12:22,440 Speaker 1: be clear were you was that your position on the 182 00:12:22,559 --> 00:12:25,200 Speaker 1: on the what the manufacturers could do, or you just 183 00:12:25,240 --> 00:12:27,480 Speaker 1: sort of laying out what the plaintiff's case was there. 184 00:12:28,280 --> 00:12:31,559 Speaker 1: I was laying out the plaintiff's case. I think Jody 185 00:12:31,640 --> 00:12:34,760 Speaker 1: is of course right that the manufacturers are perhaps somewhat 186 00:12:34,760 --> 00:12:38,880 Speaker 1: belatedly responding to this and uh uh in a number 187 00:12:38,880 --> 00:12:44,160 Speaker 1: of ways, and uh hopefully that will will bear fruit. Unfortunately, 188 00:12:44,320 --> 00:12:48,760 Speaker 1: they were now faced with a crisis and it's going 189 00:12:48,800 --> 00:12:51,640 Speaker 1: to take a lot of time and effort to to 190 00:12:52,480 --> 00:12:55,480 Speaker 1: do something about it. I want to thank our guests, 191 00:12:55,520 --> 00:12:59,120 Speaker 1: Jody Abragan, partner at cad Walder, former d e A official, 192 00:12:59,480 --> 00:13:01,559 Speaker 1: and Richard Austin as a professor at the University of 193 00:13:01,640 --> 00:13:02,760 Speaker 1: Kentucky School of Law.