Opioid Crisis Update: Ohio becomes the latest state to file suit against pharmaceutical companies

June 5th, 2017 by CHHS RAs

By CHHS Research Assistant Bach Nguyen

On Wednesday, May 31, 2017, the State of Ohio filed a lawsuit against five major drug manufacturers for the role the manufacturers played in the ongoing opioid epidemic, making Ohio the second state to do so. The suit brings six causes of action, generally alleging that “the drug companies engaged in fraudulent marketing regarding the risks and benefits of prescription opioids which fueled Ohio’s opioid epidemic.” The named parties in the suit include Purdue Pharma, Johnson & Johnson and its Janssen Pharmaceuticals subsidiary, Teva Pharmaceuticals and its subsidiary Cephalon, Endo Health Solutions, and Allergan. According to Ohio Attorney General Mike DeWine, “These drug manufacturers led prescribers to believe that opioids were not addictive, that addiction was an easy thing to overcome, or that addiction could actually be treated by taking even more opioids.”

Specifically, the lawsuit alleges violations of Ohio’s Product Liability Act (“PLA”), Ohio’s Corrupt Practices Act (“OCPA”), Ohio’s Consumer Sales Practices Act (“CSPA”), as well as Medicaid Fraud and Common Law Public Nuisance under Ohio state law. Despite the claims being brought under Ohio law, many other jurisdictions have similar laws. For example the Maryland Consumer Protection Act contains provisions for unfair or deceptive trade practices. In fact, many other jurisdictions have brought similar lawsuits in the past; including the State of Mississippi; the cities of Chicago and Everett, Washington; and several counties in New York, California, and West Virginia. The pharmaceutical companies’ marketing practices have also sparked interest from the U.S. Senate, which is launching its own investigation. A letter from Sen. Claire McCaskill notes that in 2007, Purdue Pharma paid $635 million in fines and settlements related to its misrepresentation of the addictive qualities of its painkiller, OxyContin, and that three executives from the company plead guilty to criminal misbranding.

While Ohio is only the second state to file this type of lawsuit, many other state and local governments are watching closely to determine how to proceed. The nation as a whole has been ravaged by overdose deaths, with new data suggesting that overdose deaths exceeded 59,000 in 2016, accounting for the largest annual jump in United States history. Ohio alone saw a 25% increase in deaths from the previous year. Although many of the suits, such as the suit in Mississippi, are still pending, a suit in West Virginia has led to settlements that will pay the state tens of millions. If successful, suits like these could bring forth a wave of litigation similar to the lawsuits against tobacco companies in the 1990s, which led to over $200 billion in settlements. However, a significant hurdle to opioid suits is that, unlike tobacco, opioids are regulated by the FDA, and therefore pharmaceutical companies can rely on FDA approval to combat the claims made by plaintiff’s lawyers. Time will tell whether these suits will prove successful.

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