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    November 18, 2019

    Hospitals Jump Into the Opioid Litigation Fray

    By Lynn M. Barrett, Esq., CHC, CCP, Barrett Law, PA, Weston, FL

    Introduction

    Every week – if not every day - it seems like one can pick up a newspaper or magazine and read a story related to the national opioid crisis and the impact it has had on the country. Recently, many of the stories focus on the multitude of states, cities, and counties that have sued pharmacies and the manufacturers and distributors of opioids whose actions, they claim, caused the crisis. Much attention, for example, has been focused on the pending multidistrict litigation (MDL) occurring in Cleveland, Ohio under Judge Dan Polster.1 In the MDL, over 2,000 lawsuits brought by cities, counties, municipalities and tribal governments have been consolidated into a single action for purposes of coordinated and consolidated pretrial proceedings. The plaintiffs in these suits seek to hold opioid manufacturers, distributors and retail pharmacies liable for the significant costs that the plaintiffs incurred in dealing with the opioid epidemic. In addition, state attorneys general have initiated lawsuits against the same and similar defendants, who they also claim caused the crisis and now must pay to fix it.2  

    What appears to have garnered somewhat less attention are the lawsuits that have been filed by a multitude of hospitals that claim they have been on the frontline of treating the victims of the opioid crisis and have borne a significant amount of the associated costs, for which they have received little, if any, compensation.3

    Recently, Premier, a healthcare improvement company, studied data from 647 healthcare facilities across the country and found that the total care for patients who experienced an opioid overdose resulted in $1.94 billion in annual hospital costs.4 The analysis found that the costs were concentrated among almost 100,000 opioid overdose patients with nearly 430,000 total visits across emergency department (ED), inpatient and other care settings. Sixty-six percent of the patients were insured by government programs (33 percent Medicare and 33 percent Medicaid), while 14 percent were uninsured.5 By extrapolating the costs trends, Premier estimated that the total added costs to the U.S. healthcare system are estimated to be $11.3 billion annually, or one percent of all hospital expenditures.

    According to the Healthcare Cost and Utilization Project, a project sponsored by the Agency for Healthcare Research and Quality, between 2005 and 2014 the national rate of opioid-related inpatient stays increased 64.1 percent while the national rate of opioid-related ED visits increased 99.4 percent.6  The Altarum Institute, a nonprofit research and consulting organization, found that the healthcare costs related to the opioid crisis reached $215.7 billion from 2001 to 2017 and stemmed largely from ED visits to treat and stabilize patients after an overdose, any associated ambulance and Naloxone use required, and related indirect healthcare costs associated with the increased risk of other diseases or complications.7 Studies have also shown that up to 30 percent of hospitalized patients with a substance use disorder discharge themselves early against medical advice before completing needed treatment, that annual direct healthcare costs for opioid abusers were more than eight times higher than for non-abusers, and that the high cost of opioid abuse was primarily driven by the prevalence of costly co-morbidities as well as high utilization rates of medical services and prescription drugs.8

    Given these statistics, it’s no surprise that hospitals have jumped into the opioid litigation fray. They claim that hospitals have been responsible for providing essential medical services to help the victims of the opioid crisis, who are the individuals coming to the hospitals with opioid-related conditions, and that the hospitals shouldered the costs of these services, in many cases without sufficient – or even any - reimbursement. Therefore, hospitals argue, they should be directly compensated by the drug manufacturers, distributors and pharmacies that allegedly caused the crisis and should not have to compete for money that states, counties and others may receive as a result of verdicts or settlements. Accordingly, hospitals have filed their own lawsuits in either federal or state court, some of which have been consolidated into the MDL. Regardless of where the cases are filed, many of the allegations in the lawsuits are the same or similar and arise from the same or similar alleged conduct of the defendants.

    Multidistrict Litigation

    In April 2018, in an effort to group together plaintiffs who are similarly situated in the MDL, Judge Polster issued a case management order (Order). In the Order, Judge Polster identified four sets of representative plaintiffs: local governmental entities in Illinois and Ohio; local governmental entities in Florida, Michigan and West Virginia; sovereign entities, including Alabama and Native American tribes; and hospitals and third party payors.9 He also identified three Ohio cases as “Track One” cases, which meant that these cases would be the first cases to be set for trial.10 The plaintiffs in these cases generally allege, among other things, that the manufacturer, distributor and pharmacy defendants aggressively marketed opioids and engaged in deceptive business practices by making false representations about opioids’ addictiveness and effectiveness and oversaturated the market with opioids by failing to implement controls to prevent drug diversion and misuse, and failing to monitor, detect, halt and report suspicious opioid orders.

    In addition to identifying representative plaintiffs in his Order, Judge Polster directed that a single MDL case filed by a hospital, the claims of which are governed by the laws of either Florida, Illinois, Michigan, Ohio or West Virginia, be identified as a test or “bellwether” case.11 The process of choosing a bellwether case entails determining which categories of cases should be selected for trial, and, within those categories, selecting a case or cases that would allow for the advancement of theories and achieve good results – or at least results that all sides can live with.12 By trying representative or bellwether cases, lawyers on both sides can gain useful information, including discovering facts, predicting arguments and having the benefit of judicial determinations. They also can lead to reaching global settlements.13 In fact, Judge Polster has made no secret of his desire to encourage the parties to settle which, he stated, “would expedite relief to communities so they can better address this devastating national health crisis.”14 (To that end, he approved a “negotiation class” consisting of all counties and cities in the United States (unless a city or county opts out) which will negotiate with individual defendants in order to facilitate class-wide settlements).15

    One of the first hospital cases to be filed in the opioid litigation was filed on November 21, 2017 by Baptist Hospital, Inc. and Jay Hospital, Inc. (collectively, Baptist), both located in the state of Florida.16 Baptist sued a number of entities including, without limitation, opioid pharmaceutical companies Purdue, Cephalon, Janssen, Endo, and Actavis, distributors McKesson, Cardinal and AmerisourceBergen, and retail pharmacies CVS, Walgreens, and Walmart.17 Each of these defendants, the Baptist Complaint argued, “intentionally and negligently created conditions in which vast amount of opioids have flowed freely from drug manufacturers to innocent patients who became addicted, to opioid abusers, and even to illicit drug dealers – with distributors regularly fulfilling suspicious orders from pharmacies and clinics, who were economically incentivized to ignore ‘red flags’ at the point of sale and before dispensing the pills.”18

    Baptist alleged that the pharmaceutical defendants developed and engaged in a deceptive marketing scheme to spread false messages about the risks and benefits of long-term opioid use. These false messages included statements that starting patients on opioids was low-risk because most patients would not become addicted, that individuals who exhibited signs of addiction were probably not addicted and could easily be weaned from the opioids, and that the higher use of opioids does not pose special risks.19 This scheme, according to the Baptist Complaint, was perpetrated through a number of means, including using “detailers,” who were sophisticated and specially trained representatives who would visit doctors and medical staff; using supposedly unbiased, objective speakers’ bureaus and programs -- which were actually allegedly paid for by the defendants -- designed to provide incentives for physicians to prescribe opioids; and using sophisticated data mining and intelligence to track and understand prescribing rates by physician.20

    The Baptist Complaint also alleged that the distributor defendants failed to comply with the federal Controlled Substances Act (CSA),21 which requires distributors to maintain effective controls against opioid diversion and to create and use a system to identify and report suspicious orders of controlled substances to law enforcement.22 Baptist alleged that the distributor defendants “negligently and intentionally failed to adequately control their supply lines to prevent diversion” despite having paid large fines over the years for failing to maintain effective controls.23

    Pharmacy defendants, the Baptist Complaint alleged, were the “last line of defense” to prevent opioids from entering the illicit drug market and had a duty to ensure that prescriptions were valid and issued for a legitimate medical purpose. Pharmacies could not, for example, “blindly fill prescriptions” or ignore suspicious orders or red flags, Baptist stated.24 However, pharmacy defendants engaged in improper dispensing practices and breached their professional duties and the requirements established by the CSA, Baptist alleged.

    Baptist’s Complaint also alleged that the defendants and/or defendants’ activities (1) breached Florida’s Deceptive and Unfair Trade Practices Act25 (FDUTPA) because they violated the CSA and ignored the problem of opioid diversion; (2) caused a nuisance by selling or facilitating the sale of prescription opioids and by failing to implement effective controls and procedures in the supply chains to guard against diversion and to detect, stop and report suspicious orders; (3) were negligent or reckless; (4) were unjustly enriched in that they profited while fueling the opioid epidemic and benefitted from the hospitals’ efforts to address, remedy and/or mitigate the harms caused by the defendants’ conduct (which allegedly allowed the conduct to continue); (5) engaged in common law fraud by making and/or disseminating false representations and deceptive statements and concealing material facts; and (6) engaged in a civil conspiracy through the concerted efforts of the distributors, who supplied the opioids, and the pharmacies, who paid for the opioids in order to satisfy the demand for the drugs.26

    As a result of the defendants’ activities, Baptist argued, it had to spend a significant amount of money and resources to address the opioid crisis, much of which has gone un-recouped or unreimbursed. Such costs included the costs of providing medical care and treatment for patients suffering from opioid-related addiction or diseases (including overdoses and deaths), counseling and rehabilitation services, security, and added regulatory compliance. Baptist also had to divert assets from the provision of other needed healthcare and had to absorb the lost productivity of its employees.27 As a result, Baptist is seeking, among other relief, compensatory damages, civil penalties, injunctive relief and restitution.

    Approximately eight months after the Baptist case was filed, on July 17, 2018, West Boca Medical Center (WBMC), a Tenet facility located in Boca Raton, Florida, filed suit against many of the same defendants and based on much of the same or similar conduct delineated in the Baptist case.28 WBMC’s Complaint, which totals 314 pages, laid out a comprehensive factual background of the opioid epidemic and contained numerous allegations against the “marketing defendants” such as Purdue, Cephalon, Endo and Insys, and the “supply chain defendants” which include distributors such as Cardinal, McKesson and AmerisourceBergen and national retail pharmacies such as CVS, Walgreens and Walmart.

    For example, like the Baptist Complaint, WBMC’s Complaint alleged that the marketing defendants falsely, deceptively and unfairly marketed opioids using direct marketing and front groups, paid key opinion leaders and sponsored continuing medical education programming. Through these and other means, WBMC alleged, multiple false and deceptive statements and misrepresentations were disseminated, including that long-term opioid use improves functioning, that alternative forms of pain relief pose greater risks than opioids, that signs of addiction actually represent “pseudoaddiction,” which requires more opioids, and that new formulations of certain opioids successfully deter abuse.29

    Also like the Baptist Complaint, the WBMC Complaint alleged, among other things, that the supply chain defendants deliberately disregarded their duty to maintain effective controls to prevent drug diversion and to identify, report and halt suspicious behaviors, and flooded the market with opioids all while “knowing they were contributing to, but profiting from, widespread addiction and human misery.”30 But for the hospitals mitigating the medical consequences of the defendants’ behavior, the WBMC Complaint alleges, the number of overdoses and deaths would have been far greater and the devastating effects of the opioid crisis would have been realized sooner. Further, according to the WBMC Complaint, hospitals bore the brunt of treating overdose patients who came to the hospital in worse shape than other patients and required longer stays and a higher level of treatment. This led to hospitals incurring millions of dollars in damages for the cost of uncompensated care resulting from the unlawful marketing, distributing and sale of opioids.31

    In addition to alleging that the defendants’ activities violated the CSA and the FDUTPA, and that the defendants were negligent, created a nuisance and were unjustly enriched, the WMBC Complaint alleged that the defendants’ activities violated additional laws. For example, the WBMC Complaint alleged that the defendants violated the federal RICO statute32 through a “false narrative enterprise,” the purpose of which was to carry out an intentional scheme to defraud buyers, including doctors and hospitals, by spreading false statements about the safety and benefits of opioids.33 The defendants also allegedly engaged in a pattern of racketeering activity by engaging in multiple and continuous violations of the federal mail fraud and wire fraud statutes, thereby also allegedly violating RICO.34 WBMC further alleged that the defendants’ activities constituted negligence, wanton negligence and negligence per se.35

    The Hospital Bellwether Case

    As noted above, Judge Polster required in his April Order that one case filed by a hospital be identified as a bellwether case. He left this decision to the Plaintiffs’ Executive Committee, which includes one hospital representative. That hospital representative, John W. Barrett, chose as the bellwether case the WBMC case – the case Barrett himself had filed on behalf of WBMC.36 Baptist, as well as five additional hospitals objected to this selection on the grounds that (1) the Baptist case was not only the first hospital case filed in the opioid litigation, but was also in the original transfer order constituting the MDL, whereas the WBMC case was not even filed when the Order was issued; (2) neither Barrett nor any other attorney of record for WBMC is a Florida lawyer (the attorneys of record are from Mississippi); and (3) Barrett has “a long history of suing hospitals,” including some of those that are involved in the hospital MDL, and has had an historic role of being an adversary to hospitals.37  Barrett countered stating, among other things, that his complaint was the best “state-of-the-art pleading with an especially good RICO count” and that it included seven claims for relief that were not contained in the Baptist Complaint.  He also noted that the two RICO counts were drafted with the assistance of Professor G. Robert Blakey, the author of the RICO statute, who signed the WBMC Complaint as co-counsel.38  On July 3, 2018, Judge Polster denied Baptist’s motion and WBMC remained the bellwether case for hospitals.39

    Very quickly after Barrett chose his WBMC case as the bellwether case, the WBMC Complaint was the subject of three separate motions to dismiss by the defendants40 who likened WBMC’s case to the hospital tobacco cases of 20 years ago. There, hospitals sued tobacco companies to recover unreimbursed medical expenses incurred as a result of treating medical conditions suffered by smokers. The hospitals alleged, among other things, that the tobacco companies engaged in a conspiracy that deceived and misled the public about the addictiveness of nicotine and the risks of smoking. In 2000, the Third Circuit dismissed the cases, finding that the harm the hospitals suffered was too remote from the alleged fraud of the cigarette companies and because the hospitals’ claims were derivative claims – that is, the hospitals’ claims were derived from the claims of the direct victims of tobacco, the cigarette consumers who suffered from tobacco-related illnesses.41

    As with the tobacco cases, the defendants argued, WBMC’s claims were remote and attenuated. In fact, the manufacturer defendants argued that WBMC’s claims were even more attenuated than in the tobacco cases because opioids (unlike cigarettes) are FDA-approved, have a legitimate medical purpose, and are obtained from licensed prescribers, who exercise independent decision-making when prescribing opioids. The defendants also argued that the WBMC Complaint must be dismissed because WBMC’s claims were indirect and derivative; that is, any injury the hospital suffered resulted from and was dependent on the personal injuries suffered by individuals with opioid-related medical conditions.

    Causation was also identified as an issue by the defendants, who recited a number of factors that they alleged complicated establishing the causal link, including the reasons why patients sought hospital care, why patients did not have insurance or money to pay for care, and whether WBMC could have recouped money through other means. WBMC’s RICO claims also came under fire and were allegedly not supported by any evidence that there was a RICO enterprise, actionable racketeering activity or a RICO injury. WBMC failed to allege, it was argued, that the defendants’ activities were the direct cause of the hospital’s harm. Rather, the WBMC Complaint allegedly contained “conclusory allegations” of a RICO conspiracy and failed to allege “when, where, or between whom any alleged illicit agreement was made.”42 The pharmacy defendants went so far as to state that WBMC’s RICO allegations were “taken almost verbatim from sections of other bellwether complaints” and that those complaints had excluded the pharmacy defendants. The defendants further accused WBMC of engaging in a “copy and paste approach [that] represents the most egregious form of group pleading.”43 Other arguments proffered by the defendants included that state law claims were preempted by federal law, that no common law or statutory duty of care was owed to WBMC, and that no private right of action is available to WBMC to enforce the CSA.

    After this barrage of motions, WBMC rebuffed the defendants’ arguments, stating that because of the defendants’ deceptive and negligent acts, “hospital emergency rooms and beds are overrun with patients whose medical conditions result directly from or are made more difficult by a history of opioid use.”44 As a consequence, WBMC claimed, it had to add services, divert resources from other medical areas, meet additional regulatory requirements, and hire extra security to control “pill seekers.” In addition, WBMC argued against the defendants’ comparisons of its case to the tobacco cases because, among other reasons, cigarettes, unlike opioids, were not used for medical treatment; hospitals and their physicians were targeted directly by the defendants who marketed opioids; and tobacco manufacturers “did not have the long and sordid history of federal indictments, guilty pleas, consent orders and regulatory actions” associated with opioids.45

    Similar arguments were also made in a motion filed by 44 hospitals (the Amici Hospitals), who  sought to file an Amicus Curiae Brief opposing the defendants’ motions to dismiss.46 In their brief, the Amici Hospitals argued that the WBMC bellwether case should survive the motions to dismiss on public policy grounds. The Amici Hospitals argued that if hospitals were to be excluded from the MDL (by granting defendants’ motions to dismiss), monetary recoveries “will never actually reach the front lines” – the hospitals that have suffered direct harm and that will, they claimed, have the most direct role in addressing future harm. This, they argued, is what occurred in the tobacco cases where hospitals were not part of the litigation and as little as three percent of the money recovered was used for tobacco prevention; prevention, the Amici Hospitals stated, is what hospitals will focus on if they recover money from the lawsuits. The Amici Hospitals also argued that hospitals were directly targeted by the defendants and therefore are victims who were directly injured by the defendants’ alleged activities. Further, unlike in the tobacco cases, the Amici Hospitals argued that hospitals now can “precisely ascertain their damages” through the use of precise CPT codes and electronic health records, and will not have to rely on imprecise estimates of damages, as was the case in the tobacco litigation. Finding that the Amici Hospitals’ brief duplicated WBMC’s arguments and that WBMC’s counsel was not “incompetent to address the task,” Judge Polster denied the Amici Hospitals’ motion.47

    As the parties continue their battle on paper, it will be interesting to see whether this hospital bellwether case will actually go to trial. Settlements of other cases and discussions of future settlements is ongoing.  For example, on the morning of  October 21, 2019, as the trial in the Track One bellwether case was to begin, the remaining defendants in that case – the three distributors (AmerisourceBergen, McKesson and Cardinal Health) and the remaining manufacturer (Teva) announced that they had reached a $260 million settlement with the plaintiffs. Walgreens, which was classified as both a retail pharmacy and a distributor, did not reach a settlement. Accordingly, the very first trial in the MDL has yet to occur.

    Hospital State Cases 

    Separate and apart from hospital cases in the MDL, a number of hospitals have filed suit against all or most of the same defendants -- as well as additional defendants such as individual members of the Sackler family (the owners of Purdue) -- in state court. For example, in July 2019 33 hospitals, 26 in Tennessee and seven in Virginia, filed suit in Greene County Circuit Court in Tennessee against approximately 66 defendants, including, but not limited to, most of the defendants in the WBMC MDL case.48 The plaintiff hospitals included hospitals that are a part of Community Health Systems and Ballad Health, although both HCA Healthcare and Vanderbilt University Medical Center did not join the suit. Strikingly similar complaints were filed by hospitals in Arizona (with 12 hospital plaintiffs), Alabama (with 21 hospital plaintiffs) Kentucky and West Virginia (with 37 hospital plaintiffs), Texas (approximately 30 hospital plaintiffs) and, most recently, Florida (with 27 hospital plaintiffs). Interestingly, eight of the hospitals that are a part of Florida’s suit filed in state court are Tenet facilities49 -- with the ninth Tenet facility in Florida being WBMC, the bellwether case in the MDL.

    As with the WBMC Complaint, the complaints filed by these hospitals are either close to or over 300 pages long and are virtually identical in certain respects. For example, with the exception of references to state law, the “Factual Background” of each of these complaints, including the WMBC Complaint, is virtually identical, as are the complaints’ sections entitled  “The Marketing Defendants’ False, Deceptive, and Unfair Marketing of Opioids,” which contain 10 “Falsehoods” that the plaintiffs state were disseminated by the marketing defendants that allegedly contributed significantly to the opioid crisis.50 Further, a number of the state hospitals’ allegations and claims for relief are similar, if not identical, including allegations that the defendants owed the hospitals a duty of care, which they breached; that the defendants engaged in a conspiracy and in fraud and deceit; and that they created a public nuisance. (In fact, the complaints have so many identical provisions that the Florida hospital complaint, which was the last of the noted complaints to be filed, refers to “Arizona statutes and regulations” rather than Florida statutes and regulations).51

    Additionally, as with the WBMC Complaint, the hospitals alleged that the defendants’ actions resulted in widespread addiction, suffering, and loss of life in communities across the states in which the hospitals are located. They also claimed that the hospitals were on the frontline of the crisis and bore the financial burden of the uncompensated and under-compensated care and treatment they provided for the patients with opioid-related conditions. Perhaps not surprisingly, one additional item the complaints have in common is that Barrett, who filed the WBMC Complaint and chose it as the bellwether case, is listed as one the hospitals’ counsel in each of the six noted complaints. In fact, as of September 5, 2018, Barrett’s firm represented over 400 hospitals in 35 states in the opioid litigation.52

    Perhaps in light of the numerous similarities among the state complaints and the similarities between the state complaints and the WBMC bellwether complaint, at least one motion  has been filed by The Kroger Company to remove a state hospital case to federal court to be consolidated as part of the MDL.53 Whether other defendants in other hospital cases will attempt to do the same remains to be seen. But what seems to be clear is that more hospitals are likely to join the opioid litigation fray. According to Nashville Public Radio, Barrett’s firm is (and appears to have been) recruiting hospitals to join state-based litigation.54 In addition, West Virginia University President Gordon Gee and former Ohio Governor John Kasich are reportedly establishing a nonprofit organization designed to highlight the harm done to hospitals as a result of the opioid crisis and, perhaps, to encourage hospitals to be involved in the fight.55

    Current Status 

    It also remains to be seen whether the WBMC bellwether case will actually go to trial in light of the recent settlements that have been reached, including settlements in the Track One MDL. As for the state cases, given the conclusion reached in the Johnson & Johnson opioid case in Oklahoma and the $572 million judgment,56 defendants may seek to settle the state cases as well – whether individually or as part of global settlements.  Recently, it has been reported that four state attorneys general proposed a $48 billion settlement with Teva, Johnson & Johnson, McKesson, Cardinal and AmerisourceBergen.57 Immediately thereafter, lead plaintiffs’ attorneys, among others, criticized the proposal.

    To the extent these cases settle, and particularly if the defendants push for and enter into global settlements, the next question will be: where and to whom will and should the money go?

    1. Transfer Order, In Re: Nat’l Prescription Opiate Litig, No. 1:17-md-02804-DAP (N.D. Ohio, Dec. 12, 2017), (ECF No. 1).
    2. See, e.g., Amended Complaint, State of Florida v. Purdue Pharma. L.P., No. 2018-CA-001438 (6th Cir., filed Nov. 16, 2018); First Amended Complaint, People of New York v. Purdue Pharma, L.P., No 400016/2018 (N.Y. Sup. Ct, filed March 28, 2019).
    3. See, e.g., Complaint, Baptist Hosp., Inc. v McKesson Corp, No. 3:17-cv-816 (N.D. FL, filed Nov. 21, 2017); Complaint, Tucson Med. Ctr. v. Purdue Pharma, L.P., No. C20184991 (Az. Sup. Ct, filed Oct. 29, 2018), (ECF No.1-3).
    4. Premier, Inc., Opioid Overdoses Costing U.S. Hospitals an Estimated $11 Billion Annually (Jan 3, 2019), available at https://www.premierinc.com/newsroom/press-releases/opioid-overdoses-costing-u-s-hospitals-an-estimated-11-billion-annually. According to its website, Premier is a healthcare improvement company that unites 4,000 U.S. hospitals and health systems and 165,000 other providers and organizations to transform healthcare.
    5. The rest were covered by commercial payors (16%) and other programs, such as workers’ compensation (3%).
    6. Healthcare Cost and Utilization Project Statistical Brief #219, Opioid-Related Inpatient Stays and Emergency Department Visits by State, 2009-2014 (Dec. 2016; revised Jan. 2017) available at https://www.hcup-us.ahrq.gov/reports/statbriefs/sb219-Opioid-Hospital-Stays-ED-Visits-by-State.jsp. According to its website, the Healthcare Cost and Utilization Project is a group of healthcare databases and related software tools and products developed through a federal-state-industry partnership and sponsored by the Agency for Healthcare Research and Quality, part of the Department of Health and Human Services.  
    7. Altarum Institute, Economic Toll of Opioid Crisis in U.S. Exceeded $1 Trillion Since 2001 (Feb. 2018), available at https://altarum.org/news/economic-toll-opioid-crisis-us-exceeded-1-trillion-2001. According to its website, Altarum is a nonprofit organization that creates and implements solutions to advance health among vulnerable and publicly insured populations.
    8. Lianping, T. & Lianlian, T., Leaving the Hospital Against Medical Advice Among People Who Use Illicit Drugs: A Systematic Review, American Public Health Association (Dec. 2015), available at    https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2015.302885; White, A.G. et al., Direct Costs of Opioid Abuse in an Insured Population in the United States, J. Managed Care Pharmacy 2005;11(6)469-79, available at https://www.ncbi.nlm.nih.gov/pubmed/15998164.
    9. Case Management Order One, In Re: Nat’l Prescription Opiate Litig, No. 1:17-md-02804-DAP (April 11, 2018).
    10. The original three cases were: The County of Summit, Ohio v. Purdue Pharma, L.P., No. 18-OP-45090 (N.D. Ohio); The County of Cuyahoga v. Purdue Pharma L.P., No 17-OP-45004 (N.D. Ohio); and City of Cleveland v. AmerisourceBergen Drug Corp,. No. 18-OP-45132 (N.D. Ohio).  Only the Summit case and Cuyahoga case proceeded to the trial date.
    11. Case Management Order One, In Re: Nat’l Prescription Opiate Litig, No. 1:17-md-02804-DAP (April 11, 2018).
    12. Schiferl, S.K. & Copenhaver, S.M., Selecting Cases for Early Trials in Multidistrict Litigation: Which Way Will the Bellwethers Go? Nat. Law Rev. April 30, 2019, available at https://www.natlawreview.com/article/selecting-cases-early-trials-multidistrict-litigation-which-way-will-bellwethers-go.
    13. Sekula, T., Selective Settlement and the Integrity of the Bellwether Process, 97 Texas Law Rev. Issue 4 (2019), available at https://texaslawreview.org/selective-settlement-and-the-integrity-of-the-bellwether-process/.
    14. Memorandum Certifying Negotiation Class, In Re: Nat’l Prescription Opiate Litig, No. 1:17-md-02804-DAP (Sept. 11, 2019).
    15. The negotiation class has a website with helpful information that can be accessed here:  https://www.opioidsnegotiationclass.info/.
    16. Complaint, Baptist Hospital v McKesson Corp., No. 3:17-CV-816 (D.N. Fla. Nov 21, 2017) (Baptist Complaint).
    17. The entities are: McKesson Corp., Cardinal Health, Inc., AmerisourceBergen, CVS Health, Walgreens Boots Alliance, Inc., Wal-Mart Stores, Inc. Purdue Pharma L.P., Purdue Pharma, Inc., The Purdue Frederick Company, Inc., Teva Pharmaceuticals Industries, Ltd., Teva Pharmaceuticals USA, Inc., Cephalon, Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc., Endo Health Solutions, Inc., Endo Pharmaceuticals, Inc., Allergan PLC f/k/a/ Actavis PLC, Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., Actavis LLC and Actavis Pharma, Inc.
    18. Baptist Complaint at 3.
    19. Id. at 15.
    20. Id. at 12-13.
    21. Controlled Substances Act of 1970, 21 U.S.C. § 801 et seq.
    22. Id.
    23. For example, the Baptist Complaint states that in May 2008, McKesson entered into a settlement with the Drug Enforcement Administration involving claims that McKesson failed to maintain effective controls against the diversion of controlled substances. McKesson paid a $13.25 million civil fine and agreed to implement stronger controls to prevent opioid diversion.
    24. Baptist Complaint at 48.
    25. Fla. Stat. § 501.201 et seq.
    26. Baptist Complaint at 55-66.
    27. Baptist Complaint at p.3.
    28. Complaint, West Boca Medical Center, Inc. v AmerisourceBergen Drug Corp. (N.D. Ohio filed July 7, 2017) (ECF No. 39) (WBMC Complaint). WBMC additionally sued The Kroger Co., Mallinckrodt PLC, Mallinckrodt LLC, Insys Therapeutics, Inc. and Noramco, Inc.
    29. WBMC Complaint at 48-101.
    30. Id. at 7 - 10.
    31. Id. at 3.
    32. Organized Crime Control Act of 1970, IX, Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1967.
    33. WBMC Complaint at 266-274.
    34. Id.
    35. Some of the additional laws WBMC alleged that the defendants violated included: Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq., Fraudulent Practices – Misleading Advertising, Fla. Stat. § 817.41, and Breach of Implied Warranty of Fitness for a Particular Purpose, Fla. Stat. §§ 672.315 and 672.11.
    36. Hospital Representative of Plaintiffs’ Executive Committee Notice of Identification of MDL Case Filed by a Hospital Pursuant to Case Management Order One, In Re National Prescription Opiate Litigation relating to No. 1:18-op-45530 (May 7, 2018) (ECF No. 384).
    37. Motion for Modification of Case Management Order One Filed by Baptist Hospital, Inc. and Joined in by Rush Health Systems, Inc., ApolloMD Business Services, LLC, Greenwood-Leflore Hospital, El Campo Memorial Hospital, Jay Hospital, Inc. and J. Paul Jones Hospital (May 9, 2018) (ECF No.405).
    38. West Boca Medical Center Inc.’s Response to Motion for Modification of Case Management Order One Filed by Baptist Hospital, Inc. (May 11, 2018) (ECF No. 414).
    39. Order [non-document] denying Baptist Hospital Inc.’s Motion to Modify Case Management Order One (July 3, 2018).
    40. Joint Motion to Dismiss Plaintiff’s Complaint by the Manufacturer Defendants (June 29, 2018) (ECF No. 32); Joint Motion to Dismiss Plaintiff’s Complaint by the Distributor Defendants (June 29, 2018) (ECF No. 27); Joint Motion to Dismiss Defendants CVS Health Corp., The Kroger Co., Walgreens Boot Alliance, Inc., and Walmart, Inc. (June 29, 2018) (ECF No. 28).
    41. Id.
    42. Memorandum in Support of Distributors’ Motion to Dismiss Complaint (June 29, 2018) (ECF No. 27-1).
    43. Memorandum in Support of Distributors’ Motion to Dismiss by Defendants CVS Health Corp., The Kroger Co., Walgreens Boot Alliance, Inc., and Walmart, Inc. (June 29, 2018) (ECF No. 28-1).
    44. Plaintiff West Boca Medical Center, Inc.’s Omnibus Memorandum in Opposition to (1) Memorandum of Law in Support of the Manufacturer Defendants’ Joint Motion to Dismiss Plaintiff’s Complaint (DKT. No. 691-1); (2) Memorandum in Support of Distributors’ Motion to Dismiss (DKT. No. 684-1) and Memorandum in Support of Distributors’ Motion to Dismiss by Defendants CVS Health Corp., The Kroger CO., Walgreens Boot Alliance, Inc., and Walmart, Inc.(DKT. No. 686-1) (July 27, 2018) (ECF No. 50).
    45. Id. at p.20
    46. Brief of 44 Hospital Amici, In re Nat’l Prescription Opiate Litig. (Aug. 3, 2018) (ECF No. 848-1).
    47. Order Denying Amici Motions (Aug.16, 2018) (ECF 883).
    48. Complaint Takoma Regional Hospital v Purdue Pharma L.P. (3rd D.C. Tenn. Filed July 12, 2019).
    49. See listing of Tenet Health Florida facilities, available at  https://tenetflorida.com/ https://tenetflorida.com/.
    50. Although the five other complaints contain 10 Factual Falsehoods, Arizona’s Complaint, Tucson Medical Center v. Purdue Pharma (Sup. Ct. Pima County filed Oct. 29, 2018), contains only nine Factual Falsehoods.
    51. Complaint Florida Health Services Center, Inc. v Richard Sackler (Cir. Ct Broward County Sept. 16, 2019) at 333. 
    52. See Affidavit of John W. (Don) Barrett summarizing his legal qualifications and experiences (Sept. 7, 2018), available at https://barrettlawgroup.com/wp-content/uploads/2018/09/Don-Barrett-Affidavit-7Sep18.pdf,https://barrettlawgroup.com/wp-content/uploads/2018/09/Don-Barrett-Affidavit-7Sep18.pdf.
    53. Complaint DCH Healthcare Authority v. Purdue Pharma (S.D. Ala. Oct. 9, 2019).
    54. Farmer, B., Why Some Tennessee Hospitals are Opting Out of Filing Opioid Lawsuits, Nashville Public Radio (Sept. 26, 2019).
    55. Farmer, B., Some Hospitals Sue Opioid Makers for Cost of Treating Uninsured for Addiction, Nashville Public Radio, Oct. 25, 2019, available at https://www.npr.org/sections/health-shots/2019/10/24/771371040/some-hospitals-sue-opioid-makers-for-costs-of-treating-uninsured-for-addiction.
    56. Judge Thad Balkman recently admitted he made a mistake in the calculation of the judgment amount; rather than including $107,000 to help the state develop a program for treating babies born with addictions, he included $107 million. See Associated Press, Oklahoma Judge Says He Miscalculated Award in J&J Opioid Case by $107 Million (Oct. 15, 2019).
    57. Overley, J., State AGs Reach $48B Proposed Deal to End Opioid Cases, Law 360 (Oct. 21, 2019).

    About the Author

    Lynn M. Barrett is a seasoned healthcare attorney with significant experience in matters involving federal and state healthcare laws and regulations, particularly those involving the Stark Law and the Anti-Kickback Statute. Prior to starting her own health law practice, Ms. Barrett served as General Counsel to one of the largest public health systems in the United States as well as Senior Vice President and Chief Compliance and Ethics Officer for a large multi-facility academic medical system. She has also worked in Partner and Associate positions in various large healthcare firms, as well as in-house counsel in for-profit, non-profit and public health systems.  For five years, Ms. Barrett was an Adjunct Professor for FIU’s Master of Healthcare Administration Program. She is certified in Compliance by the Health Care Compliance Association and is designated as a Certified Compliance Professional by the Health Ethics Trust.  She holds leadership positions in the American Bar Association Health Law Section and the American Health Lawyers Association. Ms. Barrett received her J.D. degree from New York University School of Law in 1991 and her B.S. from Carnegie-Mellon in 1986.  She may be reached at [email protected].