CONCORD — New Hampshire will have its own day in court in a lawsuit against Big Pharma next June, according to a state official overseeing four state lawsuits that challenge the marketing and distribution practices of opioids.
But despite the potential for a multi-million dollar award, it won’t be enough to compensate for the lives and human potential lost to opioids, said James Boffetti, an associate New Hampshire attorney general and director of the Attorney General Division of Legal Counsel.
Boffetti spoke after a $572 million verdict by an Oklahoma judge against pharmaceutical giant Johnson & Johnson for running a “false and dangerous” sales campaign that led to a wave of addiction and fatal overdoses in Oklahoma. The award amounts to about one year of expenses to combat opioid addiction and its associated costs in Oklahoma, Boffetti said.
“I think there will never be enough money to compensate people for the harm they had done in the past,” Boffetti said. “The focus should be how we abate the harm going forward.”
New Hampshire’s suit against another pharmaceutical company — OxyContin maker Purdue Pharma — is scheduled for June 2020 in Merrimack County Superior Court.
The state has three other opioid-related lawsuits pending, but they have not been scheduled for trial. The suits are against Johnson & Johnson and its pharmaceutical arm, Janssen Pharmaceuticals Inc., and drug distributors McKesson Corporation and Cardinal Health.
The state has alleged deceptive and unfair practices, unfair competition, false claims in violation of Medicaid Fraud Act, public nuisance, unjust enrichment and fraudulent misrepresentation.
In pretrial rulings, the judge hearing the cases, John Kissinger, has rejected only one claim — unjust enrichment.
Boffetti expects several suits will be decided before New Hampshire gets its turn, including the massive suit filed in a federal court in Cleveland. That case involves nearly 2,000 plaintiffs and is comprised of mostly local governments, such as Manchester, Nashua, Concord and several New Hampshire counties.
Reuters has reported that Purdue and its owner, the Sackler family, are in discussion to settle the suit. Boffetti stressed that most states, including New Hampshire, are not part of the Cleveland suit and have sued Big Pharma in their state courts. If trials go forward, several states will likely hold trials before New Hampshire.
He said smaller companies could run out of money to settle claims, so it’s to their advantage to try to negotiate overall settlements.
He said New Hampshire was the first state in the country to issue subpoenas against pharmaceutical companies, and the companies fought the subpoenas.
“Instead of trying to address this crisis, they were spending a lot of money on high-priced lawyers to delay this as much as possible,” Boffetti said.
He rejected any suggestion that the state sue physicians, saying that doctors believed the marketing claims of the companies.
Meanwhile, a lawyer who specializes in personal injury law said it would be challenging for individuals to bring personal claims against Big Pharma.
“I don’t think there would be any (money) left (for individuals),” said Concord lawyer Charles G. Douglas, who recently obtained a $14 million judgment in a class-action lawsuit against Dartmouth College to settle claims of sexual exploitation of psychology students.
In 2012, the New Hampshire Supreme Court rejected class-action status in a case that Douglas brought against cigarette giant Philip Morris on behalf of New Hampshire smokers.
He said it would be challenging to obtain class-action status against Big Pharma for much the same reasons it was against Big Tobacco: different health histories, different usage patterns, and different products and different doctors.
“Everything is so individualized, it becomes an economic impossibility to make it work,” he said.
The best that individuals can hope for is for the state to create a victims fund.
But Boffetti said the state will suffer years of costs going forward — treatment, re-education of doctors, drugs to assist treatment, public education.
Because Gordon MacDonald represented Purdue Pharma before being named attorney general, he does not participate in any discussions involving the suits against Purdue or Johnson & Johnson, Boffetti said.
“(Deputy Attorney General) Jane Young is the ultimate deciding authority here,” Boffetti said.
MacDonald does discuss proper distribution of settlement funds with other attorneys general, he said.