A2 EZ RE THE WASHINGTON POST.SATURDAy, NOVEMbER 9 , 2019
CorrECTIonl An Oct. 25 A-section article
about Secretary of State Mike
Pompeo’s recent trip to his
adopted hometown of Wichita
misstated the timing of a
possible U.S. Senate bid. Analysts
say he could run next year or in
2022.Th e Washington Post is committed to
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[email protected].In CASE YoU MISSED ITSome reports that you may have
missed. Read more at
washingtonpost.com.Sessions to run for old
U.S. Senate seat in Ala.
Former attorney general Jeff
Sessions announced Thursday
night that he will run for his old
U.S. Senate seat in Alabama. An
early supporter of Donald
Trump’s run for president,
Sessions served as Trump’s first
attorney general but fell out of
favor with the president when he
recused himself from overseeing
the Justice Department’s Russia
investigation.
washingtonpost.com/national
U.S. will officially exit
Paris climate deal
The Trump administration
notified the international
community Monday that it plans
to officially withdraw from the
Paris climate accord next fall, a
move that will leave the world’s
second-largest emitter of
greenhouse gases as the only
nation to abandon the global
effort to combat climate change.
washingtonpost.com/national
McDonald’s fires CEO
over policy violation
The board of directors of
McDonald’s fired CEO Steve
Easterbrook after concluding he
had violated the company’s
policy against manager
relationships with direct or
indirect reports. He was replaced
by Chris Kempczinski, previously
the president of McDonald’s
USA. Easterbrook’s separation
agreement temporarily prohibits
him from working for a rival
fast-food business for two years.
washingtonpost.com/business
Jones is Montgomery’s
new police chief
The Montgomery County
Council on Tuesday unanimously
approved Marcus Jones to
become the county’s next police
chief. A 34-year veteran of the
department, Jones, 55, has
served as the county’s acting
chief since June.
washingtonpost.com/local
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Periodicals postage paid in Washington, D.C., and
additional mailing office.BY JOEL ACHENBACH,
LENNY BERNSTEIN,
MERYL KORNFIELD
AND SCOTT HIGHAMcleveland — Inside the plain-
tiffs’ war room, bleary-eyed, caf-
feinated lawyers worked on what
would be one of the most impor-
tant cases of their careers — the
first bellwether trial in the nation-
al opioid litigation against the
country’s biggest d rug companies.
Their rented office space across
from the federal courthouse was
crammed with copy machines,
boxes of documents, whiteboards
and — to capture t he gravity of t he
work — some World War II-era
propaganda posters.
“Careless Ta lk Costs Lives,” r ead
one.
Someone had stenciled a mes-
sage on the wall: “If In Doubt
Don’t S hip It O ut.”
But their first battle, with two
Ohio counties as plaintiffs, was
called off at the last moment. At
1 a.m. on Oct. 21, hours before
opening arguments were to start,
four of the d rug c ompanies settled
with Summit and C uyahoga coun-
ties — with no admission of
wrongdoing.
That $ 260 million deal left
many of the most vexing questions
surrounding the national litiga-
tion unresolved — chief among
them, whether 12 ordinary people
would have held drugmakers and
distributors liable for the nation’s
catastrophic opioid epidemic.
Meanwhile, the crisis continues
claiming more t han 100 l ives a day.
The best-case scenario for cities
and counties grappling with this
historic public health disaster
could be a sweeping settlement
among all the parties. That could
potentially funnel tens of billions
of dollars from the companies to
communities desperate for re-
sources.
But such a deal is unlikely any-
time soon, according t o interviews
with attorneys involved in the case
and a survey of attorneys general
in all 50 states and the District of
Columbia. A provisional frame-work for a global settlement, an-
nounced by four of those attor-
neys general in late October, is
publicly supported by only three
other states so far.
“Global peace,” as the compa-
nies call such a deal, could take
months, years, or remain a pipe
dream — forcing communities
across the country to make their
own cases against the drug com-
panies and wind up competing
with one another in a protracted
legal slog.
Even the most optimistic pro-
jection of a long-term settlement
— legal experts suggest a range
from $50 billion to $100 billion,
paid out over years — will be or-
ders of magnitude smaller than
the h uman cost of the epidemic.
“No matter how much goes in
there, it will not be enough,” s aid
Roger M ichalski, an associate p ro-
fessor at t he University of Oklaho-
ma College of L aw w ho has closely
followed the lawsuits. “The scale
of the problem is so massive, and
it’s much easier to cause harm
than to fix harm.”
A recent report from t he S ociety
of Actuaries said t he c risis c ost the
nation $631 billion in economic
damages in just a four-year peri-
od. The extra health-care costs for
those with opioid addiction
reached $56.9 billion in 2018 — a
single year.
In addition, the epidemic’s ef-
fects will probably last for years,
perhaps e ven decades, e xperts say,
pointing to a generation of babies
suffering from d rug withdrawal at
birth, or forced into foster care
because their parents are locked
up or dead.
“Let’s say that a miracle of all
miracles occurs, and not a single
opioid tablet was sold again, and
not another gram of heroin was
ever distributed again,” said Steve
Williams, mayor of Huntington,
W.Va. “We’d still be dealing with
the fallout of this epidemic for the
next four decades.”A cautionary tale
There are still about 2,400 cit-
ies, counties and Native American
tribes, not to mention most of the
states of the union as well as the
District of Columbia, suing a cou-
ple dozen major drug companies,
and in some cases their owners.
It’s a gigantic Gordian knot, in-
volving a tangle of companies and
governmental jurisdictions, all
represented by combative and ri-
valrous lawyers.
One model for the litigation is
the 1990s’ tobacco case, in which
four major tobacco companies
agreed to pay out an estimated
$240 billion over more than two
decades to resolve lawsuits by
states contending they had cov-
ered up the dire health effects of
smoking. But the tobacco compa-
nies were Goliaths. The drug in-
dustry is smaller, with more mod-
est profit margins.
If these drug companies were
the size of tobacco industry, “we’d
be talking about a $500 billion
settlement, or a trillion-dollar set-
tlement, because those are the
numbers that reliable public
health economists have put out
there that it’s g oing to cost us,” s aid
Paul J. Hanly Jr., one of the co-
leads o f the municipal plaintiffs i n
Cleveland. “These companies do
not have that kind o f money.”The tobacco settlement also
provides a cautionary tale. Much
of the m oney went to repair roads,
bridges and potholes, rather than
toward smoking cessation cam-
paigns or public health p rograms.
“It got spent on everything oth-
er than tobacco,” said Ohio Attor-
ney General Dave Yost (R). “We
can’t a fford to have that happen in
the o pioid epidemic.”
Although many drug compa-
nies have been eager to settle the
lawsuits, they have not admitted
wrongdoing. They argue they
made and distributed legal pain-
killers that were overprescribed
by shady doctors, or illegally di-
verted to the street. They even
sought the judge’s recusal from
the case, saying his push for a
settlement showed bias against
them.
But they face real risks in trying
to convince a jury the epidemic is
unrelated to their decisions.
During the pretrial discovery
process in Cleveland, plaintiffs
won access to a confidential Drug
Enforcement Administration da-
tabase known as ARCOS that
tracked every pill manufactured
and distributed in the United
States. That database was made
public after The Washington Post
and HD Media of West Virginia
won a court case gaining access to
it. The records show that from
2006 to 2012, drug companies
shipped 76 billion hydrocodone
and oxycodone pills across the
country. Some small-town phar-
macies handled millions o f pills.
Should the opioid lawsuits go t o
trial, billions of dollars in penal-
ties would ride on how a jury
might react to those numbers and
the internal company emails un-
sealed in the case.
In the days before the sched-
uled federal trial in Cleveland, the
three major drug distributors ini-
tially offered the two Ohio coun-
ties $90 million, according to
Hanly. The companies more than
doubled that offer shortly before
opening arguments.‘Equivalent of a ham
sandwich’
Even as the cities and counties
brought l awsuits, the states devel-
oped their own cases and sought
to take the lead in a national settle-
ment. On the same day the bell-
wether trial was slated to start in
Ohio, attorneys general from
North Carolina, Pennsylvania,
Te nnessee and Te xas announced
they had reached a $48 billion
“agreement in principle” with gi-
ant distributors McKesson,
AmerisourceBergen and Cardinal
Health, as well as with manufac-
turers Te va Pharmaceutical In-
dustries and Johnson & Johnson.
The “framework” would deliver
$4 billion in cash in the f irst two to
three years, and a billion a year
thereafter for 18 years. The re-
maining $26 billion would come
in the form of free anti-addiction
medication and treatments to
counter drug overdoses. The state
officials say the proposal is prag-
matic, based on how much the
drug companies could actually
pay.
But top lawyers for the local
jurisdictions chafed at the legal
maneuver and have refused to
sign on.
“They’re attempting to come inand claim credit,” Paul Farrell Jr.,
one of the three lead attorneys for
the municipal plaintiffs, said of
the state officials. “I’d prefer if
they’d just get out of the way and
let us recover the moneys on be-
half of those areas that are most
affected.”
He and other local attorneys
argue that the dollar figure is far
too l ow and the p ayout too s low.
“It is the equivalent of a ham
sandwich,” Hanly s aid.
The state officials counter that
they, t oo, have worked on the issue
for years, and suggest the local
attorneys, who are mostly in pri-
vate practice, are motivated in
part by the substantial fees they
are likely to receive from a deal.
So far, the attorneys general
proposal has won little backing.
Officials from Iowa, Missouri and
Nebraska told The Post they sup-
port the deal, while those from
Ohio, West V irginia a nd M ississip-
pi said they’re opposed, with most
of the rest saying they’re still
studying the details.
Yost, the O hio attorney general,
said he’s worried that states most
devastated by the epidemic, such
as his own, won’t g et e nough mon-
ey. He c ompared the framework to
“a pile of lumber delivered to the
construction site.”
Also complicating things are
the divergent strategies among
manufacturers of opioids, distrib-
utors a nd p harmacies. Walgreens,
for example, was the lone holdout
on a settlement with the two Ohio
counties. Meanwhile, Purdue
Pharma, maker of the slow-re-
lease o pioid OxyContin — the drug
that experts say played a major
role in the e pidemic — has filed f or
bankruptcy as part of a proposed
settlement. Purdue has offered to
settle for roughly $12 billion in a
deal that is politically controver-
sial, in part because i ts owners, the
Sackler family, would retain most
of their wealth.
No company has admitted cul-
pability in the initial two-county
settlement, o r the p roposed global
settlement pitched by the state
attorneys general.
That refusal angers many peo-
ple affected by the e pidemic.
“For us, as families, this doesn’t
give us closure,” s aid Greg McNeil,
who lost his son, Sam, to heroin in- Sam had first become ad-
dicted to prescription pain pills.
“They deceived the public, and
because of that many people per-
ished. Four hundred thousand
families will have an empty seat
around the table at the holidays
this year and they need to be held
accountable for that.”
Attorneys are also divided over
the most equitable way to share
money that comes from settle-
ments or court-ordered damages.
Earlier this year, attorneys for the
local plaintiffs proposed a formula
based on the number of pills dis-
tributed, deaths from opioids and
the number of people with opioid
use disorder. If approved, that
would send more money per capi-
ta (if not in total dollars) to rural
counties in the eastern United
States, where the opioid epidemic
was fueled p rimarily by pills.
That r aises issues of geographic
and racial equity, former Balti-
more health commissioner Leana
Wen wrote in a recent op-ed for
The Post.
“The addiction is to opioids,
whether the opioids are prescrip-
tion or street opioids,” s he said in
an interview.
She pointed o ut that Baltimore,
with a large minority population,
has struggled with heroin addic-
tion for decades. Many people
there and around the country “ are
angry that opioid addiction was
not deemed an epidemic until de-
cades after it claimed the lives of
countless people in m inority com-
munities,” s he wrote i n her op-ed.
B eyond the legal battle is an
evolving s ocial crisis.
The biggest need is access to
treatment, said Anne Connell-
Freund of Oriana House, a net-
work of treatment facilities in
northeast O hio. Ty pical clients are
on Medicaid, and the managed
care companies that run the pro-
gram in Ohio a llow 30 days.
That’s insufficient, she said;
most people need 60 to 90 to get
sober and perhaps six to eight
months in a sober living house
before they can get a job and try to
reclaim t heir lives.
For clients who aren’t on Med-
icaid, treatment is an endless c ycle
— “a revolving door” — through
emergency rooms, said Bernie
Rochford, Oriana House’s execu-
tive vice president. He believes
drug executives should be held
accountable for that.
“We have prisons full of drug
dealers who have done a hell of a
lot less than what these guys have
done,” he said. “A h ell of a lot less.”
[email protected]
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Ko rnfield reported from Washington.
Aaron C. Davis, Sari Horwitz and
Christopher Rowland contributed to
this report.An uphill battle on opioid settlement
Global deal could be best
outcome, officials say,
though appears unlikelyNew York
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