HOLBROOK & ST. JOHNS — Navajo and Apache counties have sued dozens of drug makers, distributors and individuals seeking reimbursement for the massive expenditures the counties say they have incurred and will incur in dealing with the opioid crisis.
The epidemic has claimed the lives of over 400,000 Americans. According to the Arizona Department of Health Services, in a two year period ending in September, 2019, Navajo County had 103 opioid overdose deaths and Apache County had 10.
The counties differ in their approach to the litigation, with Navajo County joining about 2,300 other plaintiffs in a federal suit consolidated in Ohio, and Apache County keeping it local by suing in the Apache County Superior Court.
The main target is Purdue Pharma, Inc. and its affiliates, the makers of OxyContin. That’s the brand name of drug in a particular class of narcotic, and its marketing, and is what plaintiffs have identified as a leading cause of the epidemic. OxyContin a powerful derivative of the Tasmanian poppy, grown and harvested on the Australian island and distributed in the U.S.
The Sacklers, one of the country’s wealthiest families and the owners of Purdue and other pharmaceutical companies are also a prime target.
Purdue Pharma filed for Chapter 11 bankruptcy protection on September 15 in federal bankruptcy court in White Plains, N.Y. which temporarily halts the lawsuits against it. The company says that the filing is the first step in a tentative settlement with plaintiffs in the consolidated federal cases. The idea is that Purdue will restructure itself as a “public benefit trust,” continuing its lucrative pharmaceutical business and paying its profits to various claimants, according to reports.
Purdue estimates that its plan will pay out $3 billion in seven years with the total value of settlement to be around $10-$12 billion. So far, reports the New York Times, 24 states and many of the cities and counties which joined in the consolidated federal suit in Ohio have tentatively agreed to the settlement. Purdue’s board of directors have agreed to it, “in principle” say reports.
Whether Navajo County, a plaintiff in that suit, will go along with the settlement is unknown. The Navajo County Attorney’s office has not returned calls or texts from the Independent. As mentioned, Apache County is not part of the federal cases.
The extent of the opioid problem is revealed by data gathered by the U.S. Drug Enforcement Agency and made public by The Washington Post and a West Virginia newspaper after they acquired it by suing the federal government. The database shows the number of certain types of prescription opiates distributed in every county in the U.S. between 2006 and 2012.
In that time period, a total of 23,618,291 prescription pills were distributed in Navajo County — that’s 31 pills per year for every person in the county. For Apache County, the database lists 4,621,785 prescription pain pills during that same time period, or 9 pills per year for every person in that county. The newspapers are currently involved in a suit to get more recent data.
How much will
the counties get?
As with most settlements talks, the first of many snags has emerged. First, the attorney general of New York, Letitia James, has notified the court that her investigation suggests that about $1 billion has been transferred to a Sackler family member from one or more Purdue-related companies. And in Arizona, Attorney General Mark Brnovich last month specifically asked the U.S. Supreme Court to halt such transfers. If true, activities like that don’t exactly engender good faith in negotiations.
Then there is a general skepticism that the public trust restructuring plan for Perdue will pay out as much as Purdue estimates. Such a plan has been used before in suits against an asbestos manufacturer with mixed results.
Aside from the question of how much will be paid out is the question of exactly how much, in terms of dollars, the damages actually are.
Navajo County’s complaint lists costs for increased medical services, law enforcement, courts, public defenders, jails, burial costs, costs for children who have become dependent on the state because of addicted parents, etc, but doesn’t name a specific amount. Apache County’s suit claims similar areas of increased costs, but states that damages will be proven at trial.
In the first judgment handed down after a trial about opiate-related costs in Oklahoma, the court came up with a final figure — $572 million, against one defendant. In Oklahoma’s suit against manufacturer Johnson & Johnson the trial judge broke down the $572 million he awarded to the plaintiff. The Oklahoma judgment’s laundry list of damages includes treatment programs for newly-identified disorders like opioid use disorder, addiction treatment programs, including treatment for addicted newborn babies, medication and disposal programs, training of medical providers to screen, recognize and treat users, distribution of the drug naloxone which reverses effects of opioids during overdoses, and the costs of other programs.
The judge noted that his calculation was only one year’s costs to that state; that although the plaintiffs produced testimony that it would take 20 years worth of effort to resolve the problem, “the State did not present sufficient evidence of the amount of time and costs necessary, beyond one year, to abate the Opioid Crisis,” wrote the judge. Johnson & Johnson has appealed the judgment.
So the damages to one plaintiff, the State of Oklahoma, for one year is $571,102,028, says the court.
That’s not counting claims from other Oklahoma counties, cities, towns or tribes — and not counting the alleged costs to the estimated 2,700 other plaintiffs nationwide, including Navajo and Apache counties, waiting for their day in court.
Negotiators have to wonder if there will be any money left after the very last case is decided.