CONCORD — As the first of hundreds of lawsuits against the companies that made, marketed and distributed opioids went to trial in Oklahoma last week, state and local officials here are beginning to consider just what a settlement with Big Pharma might look like.
James Boffetti, associate attorney general, is director of the division of legal counsel in the Attorney General’s office, which has filed civil lawsuits in Merrimack County Superior Court against two opioid manufacturers and two distributors. This Friday, there’s a hearing in the state's case against Purdue Pharma, the maker of OxyContin, to set a trial date, Boffetti said. “We want to do it much earlier than the defendants do,” he said.
Also pending are lawsuits against Janssen Pharmaceuticals (part of Johnson & Johnson) and two drug distributors, McKesson and Cardinal Health.
The allegations in the lawsuits are similar to others filed around the country: consumer fraud, unfair competition, false claims, public nuisance, unjust enrichment and fraudulent or negligent misrepresentation. “From the state’s perspective, we believe that these companies have caused incredibly severe damage to New Hampshire, resulting in some of the highest overdose death rates in the country,” Boffetti said.
The epidemic here has led to skyrocketing costs for law enforcement, public welfare, child protection, first responders and drug treatment, he said. “It’s been devastating,” he said. “The bottom line is that these defendants should be held responsible for what they did, and they should fix what they broke.”
Meanwhile, approximately 1,600 lawsuits have been consolidated in a massive “multi-district litigation" (MDL) that will be heard in federal court for the Northern District of Ohio in Cleveland. Among them are lawsuits filed by numerous New Hampshire counties and communities, including Manchester, Nashua and Concord.
Boffetti said he and Attorney General Gordon MacDonald are "intimately” involved in multi-state conversations about the terms of a possible settlement. But with the number of states and local jurisdictions involved, he said, “It’s a pretty massive undertaking.”
Any settlement would have to include “substantial monetary payments," Boffetti said, that could be used to help anyone who has suffered from an opioid addiction. Most cases here, he said, began not with illegal activity but with legal prescriptions from doctors or dentists. "We need to have long-term, reliable, high quality treatment for them in every part of the state," he said.
"Because if we don’t treat them, as we know, people die."
Boffetti also wants any settlement to include strict limits on how such drugs can be promoted to doctors. “My preference would probably be this is not a drug that should be marketed to anyone,” he said. And he’d like to see the companies pay for ongoing education of medical providers about the risk of opioids, "so that we can change the culture of overprescribing and thinking of opioids as safe and effective.”
A year ago, Strafford County filed a lawsuit in Superior Court against numerous drug makers and distributors. The case was moved to U.S. District Court in Concord, but George Maglaras, who chairs the county commissioners, said officials there are resisting efforts to combine the case with the MDL in Ohio.
“That’s in the defendants’ interest but that’s not necessarily in New Hampshire’s interest,” Maglaras said. “I want a New Hampshire jury or a New Hampshire judge that understands what we’ve actually faced here.”
He’s not eager to be part of a global settlement, either. “We want to go to trial,” he said.
One fear is that a multi-state settlement would be population-based, which would leave New Hampshire short-changed, despite its high rates of overdoses and death, Maglaras said. “I want a cost-based settlement, one that involves not only costs that we’ve incurred but for treatment and for future problems that we’re going to deal with as a result of narcotics,” he said.
Maglaras has been a county commissioner since 1982; before that, he served in the Legislature, first elected right after his graduation from Dover High in 1976. He says he learned some lessons from the 1998 tobacco settlement.
The largest civil settlement in U.S. history, the Tobacco Master Settlement Agreement forced major tobacco companies to make annual payments to the states to cover the medical costs of smoking-related illnesses. But Maglaras said, “Part of that deal was you were never able to sue again.” And he said, “You know Big Pharma is going to be asking for this, that no matter what we come back with in the future, you can’t come back after us anymore.”
There’s another problem with the tobacco settlement, Maglaras said; in New Hampshire, the money goes into the state's education fund.
That can’t happen with any opioid settlement money, Maglaras said. “We cannot have this simply go in the state’s general fund. We need a plan, and the plan needs to involve treatment,” he said.
The American Lung Association recently gave New Hampshire a failing grade for its funding of tobacco prevention and cessation programs. The state receives approximately $40 million a year in tobacco settlement funds, but according to the Lung Association, New Hampshire will spend just $140,000 on prevention programs this fiscal year.
Strafford County has been hard-hit by the drug epidemic; the Doorway hub at Wentworth-Douglass Hospital in Dover is the second busiest in the state, behind only Manchester's. The county has also been out in front in responding to the crisis, pioneering drug and mental health courts, safe syringe programs, and alternative sentencing programs. “We recognized a long time ago that addiction was a medical problem, not a criminal one,” Maglaras said.
Last year, Concord and Dover filed a joint lawsuit in U.S. District Court that was transferred as part of the MDL that will be heard in Ohio. James Kennedy, Concord's city solicitor, said he hopes any settlement would include funds to reimburse municipalities for the cost of services to address the drug epidemic. “But really, it’s about abating the problem that these manufacturers and distributors created," he said.
And that will take years, Kennedy said. “Because this problem didn’t occur overnight,” he said. “And it’s not going to go away overnight.”
Emily Gray Rice is city solicitor for Manchester, which filed a lawsuit against the drug companies last year in Superior Court that was later removed to federal court and is now part of the MDL. She agreed that any settlement would have to be long-term.
“Certainly from Manchester’s point of view, the settlement would need to address the degree of devastation caused by the opioid crisis, and the fact that that devastation will last for generations potentially,” she said.
Manchester has been deeply invested in addressing the epidemic, Rice said, paying for Safe Station and other innovative programs. “And I hope that whatever it is that comes out of the settlement will have the same force and the same power as the other solutions and services that the people of New Hampshire have been able to come up with to help their friends and families and neighbors," she said.
Chris Stawacz, regional director of American Medical Response, helped create the Safe Station programs at fire stations in Manchester and Nashua. He’d like to see any drug settlement money for New Hampshire go toward providing safe housing and workplace support for people who are in recovery. “Because that’s the biggest challenge,” he said.
“People get down the path of recovery, they have no place to live," he said. "They’ve burned through every bridge they’ve ever built in their life, so they go right back where they were, in the same location with the same people that got them into trouble in the first place. And they have no place to work.”
Any settlement needs to account for future costs that may arise, Maglaras said. Drug companies' efforts to develop new drugs to fight disease, pain and other medical conditions are "well intended," he said. But he warned, “We have no idea what chemicals are in development right now that will hit the market that we may end up having to face in the future.”
“You don’t know what the next crisis is going to be."