Va. isn’t ready to settle with Purdue — yet. Here’s what it wants.

By: - September 24, 2019 12:02 am

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In recent weeks, several states have settled opioid lawsuits brought against Purdue Pharma. Virginia isn’t one them.

Attorney General Mark Herring said in a release he won’t agree to a settlement until it’s in the “best interest of Virginians” and Purdue and the Sacklers “must face real, significant, personal accountability.”

The state alleges that over the past decade, Purdue convinced Virginia doctors to prescribe hundreds of millions of opioid pills while downplaying how addictive they are and claiming early signs of opioid abuse could be managed with higher and more doses of the drugs.

“This crisis is the direct and foreseeable result of a decades-long, complex, large-scale campaign of misrepresentations and deception by the opioid manufacturers, including Purdue,” Herring wrote in a lawsuit the state filed against Purdue in Tazewell County Circuit Court earlier this month.

In Virginia’s lawsuit, Herring suggests fining Purdue and the Sacklers (the family that owns Purdue) up to $2,500 for each time the company “deceptively” marketed prescription opioids, among other fines. The number of violations would be determined in court.

Other pharmaceutical companies are responsible for distributing opioids. A bipartisan, multi-state group of attorneys general had enough evidence to sue Purdue and the Sacklers, Herring said in an interview, but as the group gathers more facts, it’s possible for “more action.”

Here’s what the lawsuit says and what it could mean for the state:

Who are the Sacklers and Purdue Pharma?

Purdue is a Connecticut pharmaceutical company that creates and sells prescription drugs, including Oxycontin. The Sackler family owns the company. Forbes estimates the Sacklers are worth $13 billion, wealth built in part from the sale of opioid medications through Purdue. The family makes about $3 billion a year from Purdue.

Why sue them?

Dozens of localities across Virginia as well as the state have filed complaints against Purdue and the Sacklers.

The lawsuits make the same basic claim: Purdue and the Sacklers caused and worsened Virginia’s opioid crisis. 

“The Sacklers founded Purdue and they have directed much of their company’s strategies toward trying to sell more and more opioids all across the country,” Herring said in an interview. “They have led a life of unimaginable luxury and comfort as families across Virginia have suffered … because of their lies and deceit.”

In 2018, people who overdosed on opioids went to the emergency room 7,323 times around the state, according to state Department of Health data. Just over 500 people in Virginia died from an opioid overdose in 2017, the most recent year available. Between 2007 and 2017, almost 5,000 people in Virginia overdosed on opioids, the lawsuit states. 

In the past, opioids were used sparingly — after surgery, during cancer treatment or palliative care. In the mid-1990s, Virginia’s lawsuit claims, Purdue and the Sacklers began marketing opioids, specifically OxyContin, for chronic pain and downplayed how addictive it was.

Virginia’s lawsuit also claims:

  • Purdue knew about medical providers who were over-prescribing opioids and flooded them with calls to encourage prescribing even more, even as those providers were in danger of losing their medical licenses; 
  • Peddled a questionable diagnosis of “pseudoaddiction” that Purdue representatives said could only be managed with higher opioid dosages;
  • Explored options for entering the drug treatment business as opioid abuse became more common.

Virginia is suing Purdue and Richard Sackler, the company’s former chairman and president, for violating the Consumer Protection Act, “specifically in misrepresenting the risks of addiction and the ease in preventing it; the potential benefits of opioids, especially as related to other non-opioid pain relief; and the effectiveness of prescription opioids in offering treatment and relief for chronic pain.”

The lawsuit sues Richard, Kathe, Jonathan and Mortimor Sackler. The four held ownership interests and positions on the company’s board that meant they controlled the entire company, the lawsuit states. Richard Sackler in particular pushed for aggressive marketing that downplayed how addictive opioids were and pushed sales representatives to convince more medical providers to prescribe more and stronger doses, the lawsuit stated.

By suing the Sacklers and the company, the state is trying to make sure it has access to money the family absorbed from company profits. 

48 Virginia cities and counties are also suing individually.

Cities, towns and counties may be looking to recoup different damages than the state, said Andrew Miller, an attorney at the Washington D.C. law firm Sanford Heisler Sharp. The company is handling cases against Purdue for 48 Virginia localities.

“The localities have incurred harm that is distinct from the state,” Miller said in an interview. “A lot of the damage that’s been done in terms of paying for and allocating resources based on the harms has fallen to the hands of city and local governments.”

The lawsuits in Virginia have been filed almost everywhere — from Accomack County on the Eastern Shore to Bristol in the west; from Alexandria in the north to Danville in the Southside.

The state filed its lawsuit in Tazewell County, but Tazewell filed its own complaint in 2018. The opioid prescribing rate there was 179.3 pills per 100 residents in 2016, the county’s lawsuit states. The nationwide median rate is 82.4.

Cities, towns and counties can choose to settle separately from the state, Miller said, and other communities could still file suit against Purdue.

“We still have some folks that potentially could be interested in filing,” he said. “It’s certainly not too late.”

Purdue filed for bankruptcy. Can Virginia and its localities still get money?

Purdue filed for bankruptcy Sept, 15, as a way to wrap up more than 2,000 pending lawsuits, Reuters reported.

The company’s bankruptcy case would require the Sacklers to give Purdue to a trust controlled by plaintiffs, which would include states that sued them. The Sacklers would sell their non-U.S. pharmaceutical companies and contribute at least $3 billion of their own money to settle lawsuits.

In most cases, a bankruptcy means any lawsuits against an entity have to wait, said Steven Walt, a law professor at the University of Virginia. States can file for an exception so civil matters — like many of the cases against Purdue — can proceed.

The bankruptcy and settlement agreement has to be approved by a judge.

If Virginia gets settlement money, what happens with it?

Purdue and the Sacklers settled a similar lawsuit to Virginia’s in Oklahoma in March. The settlement agreement included $270 million for addiction research in the state, $60 million in legal fees, $12.5 million for Oklahoma localities and $20 million for medicines in a new drug treatment facility. 

“It’s my hope that recovery of money for the damage that the Sacklers and Purdue has caused will go to help expand treatment and resources for those who are battling addiction right now,” Herring said.

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Mechelle Hankerson
Mechelle Hankerson

Mechelle, born and raised in Virginia Beach, is a graduate of Virginia Commonwealth University with a degree in mass communications and a concentration in print journalism. She covered the General Assembly for the university’s Capital News Service and was among 12 student journalists in swing states selected by the Washington Post to cover the 2012 presidential election. For the past five years, she has covered local government, crime, housing, infrastructure and other issues at the Raleigh News & Observer and The Virginian-Pilot, where she most recently covered the state’s biggest city, Virginia Beach. Mechelle was with the Virginia Mercury until January 3rd, 2019.