Editor's note: This article was updated on Dec. 28 to include a statement sent from Endo Pharmaceuticals by email to The Cook County Record.
Cook County, the second largest county in the U.S., has added its name to the ever-growing list of local governments demanding the makers of some of the most prescribed opioid painkillers pay out, saying the companies owe big money for costs the county has incurred in treating painkiller addiction and dealing with its aftermath at the county’s hospitals and other institutions.
And to help prosecute the case, the county has hired a St. Charles-based trial law firm known for pressing large class actions against companies over product liability, and a New York-based law firm, which has gained prominence prosecuting asbestos exposure cases in downstate Madison County, and which was recently selected by a group of fellow trial lawyers to help lead the nationwide consolidated effort to press the opioid painkiller makers in federal court.
On Dec. 27, lawyers with the firms of Meyers & Flowers LLC, of west suburban St. Charles, and Simmons Hanley & Conroy, of New York, together with Cook County State’s Attorney Kim Foxx, filed suit in Cook County Circuit Court against a number of pharmaceutical companies, who made and promoted for sale such popular name-brand painkillers as OxyContin and Percocet, and their generic equivalents, such as oxycodone and hydrocodone, among others.
The Cook County lawsuit names as defendants drugmakers Stamford, Conn.-based Purdue Pharma; Lake Forest-based Abbott Laboratories; Janssen Pharmaceuticals, and its corporate parent, Johnson & Johnson; and Malvern, Pa.-based Endo Pharmaceuticals, as well as several corporate entities associated with those companies.
The lawsuit is essentially similar to a host of others brought across the country in a wave being likened by trial lawyers to the litigation decades ago against tobacco companies over the public health effects of cigarettes. That litigation resulted in settlements worth billions, resulting in huge payments to states and big paydays for the trial lawyers hired to help prosecute the cases. Some prominent trial lawyers, such as Jay Edelson, of the Chicago-based firm of Edelson P.C., said the cases mark an opportunity for law firms to help local governments, labor unions and other organizations wrest windfalls from “Big Pharma,” ostensibly to fund programs to address what government officials have called a growing public health problem affecting communities of all kinds across the U.S.
Locally, the city of Chicago has been pressing its case against those same pharmaceutical companies in federal court since 2014. The city has been represented in that case by attorneys with the firms of Motley Rice, of Washington, D.C., and Wexler Wallace, of Chicago.
And a few days before Cook County filed its lawsuit, several suburban counties, including Lake, Kane, Will and McHenry, all filed their own actions against the same drugmakers. In those actions, all but Lake County also hired the Simmons firm to represent them.
In all of the lawsuits, the allegations are similar, accusing the drugmakers of falsely marketing their drugs to doctors, promoting their use to the point addiction spread through communities, leading to big costs for local governments and their taxpayers to treat addiction and its after-effects.
In the Cook County suit, the county notes it annually incurs costs totaling in the millions of dollars to deal with opioid addiction. The county’s lawsuit cites a county report showing Cook County’s public hospital system handled more than 5,000 “opioid-related emergencies in 2016 … up from 1,000 in 2006.” The lawsuit said the Cook County Sheriff’s Office has treated “more than 5,000 inmates … for opioid withdrawals within the last year,” and has adapted addiction-related programs as part of “its new role … to contend with the growing issue of opioid addiction.”
Further, the county pointed to a growing number of opioid overdose deaths and criminal acts committed in relation to opioids.
Nationally, the lawsuit cites a 2016 report from the Centers for Disease Control and Prevention estimating the “national impact of prescription opioid overdoses, abuse and dependence” at $78.5 billion, including “lost productivity” at $42 billion, “health insurance” at $26 billion, “criminal justice” at $7.6 billion and “substance abuse treatment” at $2.8 billion.
“The economic impact of prescription opioid overdoses on the County is well in line with national trends,” Cook County said in its lawsuit. “As a direct and foreseeable consequence of Defendants’ egregious conduct, the County paid, and continues to pay, millions of dollars for healthcare costs that stem from prescription opioid dependency created by Defendants’ deceptive marketing campaign.”
In its lawsuit, Cook County has asked the court to award the county compensatory damages, to be tripled under state consumer fraud, insurance fraud and deceptive practices laws, unspecified punitive damages and attorney fees, among other damages.
“Opioid deaths in Cook County are growing at an alarming rate. This is a public health crisis affecting nearly every community in the county for which we must find a solution,” Cook County President Toni Preckwinkle said in a prepared statement released by the county Wednesday. “We believe a good start is to aggressively confront one of the root causes of this national epidemic: the pharmaceutical companies and those paid by the pharmaceutical companies who put profits before public health and safety.”
“The impact that opioids are having on Cook County cannot be ignored,” said Foxx in that same statement. “We see it in every part of the county, and the human cost is truly staggering. We must act in the public interest and hold accountable those who have been complicit in the creation of this epidemic."
Spokespeople for two of the pharmaceutical company defendants denied the county's allegations, noting their products are approved for patient use by federal regulators at the Food and Drug Administration.
“We are deeply troubled by the prescription and illicit opioid abuse crisis, and are dedicated to being part of the solution," said Bob Josephson, spokesman for Purdue Pharma. "As a company grounded in science, we must balance patient access to FDA-approved medicines, while working collaboratively to solve this public health challenge. Although our products account for approximately 2 percent of the total opioid prescriptions, as a company, we’ve distributed the CDC Guideline for Prescribing Opioids for Chronic Pain, developed three of the first four FDA-approved opioid medications with abuse-deterrent properties and partner with law enforcement to ensure access to naloxone.
We vigorously deny these allegations and look forward to the opportunity to present our defense.”
Josephson also rejected the comparison raised by trial lawyers and the local governments between the prescription painkillers and health hazards of tobacco.
"Unlike the past tobacco litigation, our medicines are approved by FDA, prescribed by doctors, and dispensed by pharmacists, as treatments for patients suffering from severe pain," Josephson said.
A spokesman for Janssen similarly called attention to the federal regulation of their products.
"Responsibly used opioid-based pain medicines give doctors and patients important choices to help manage the debilitating effects of chronic pain. At the same time, we recognize opioid abuse and addiction is a serious public health issue that must be addressed," said spokesman William Foster.
"We believe the allegations in the lawsuits against our company are both legally and factually unfounded. Janssen has acted in the best interests of patients and physicians with regard to its opioid pain medicines, which are FDA-approved and carry FDA-mandated warnings about possible risks on every product label. According to independent surveillance data, Janssen opioid pain medicines consistently have some of the lowest rates of abuse among these medications, and since 2008 the volume of Janssen opioid products always has amounted to less than 1 percent of the total prescriptions written per year for opioid medications, including generics. Addressing opioid abuse will require collaboration among many stakeholders and we will continue to work with federal, state and local officials to support solutions."
A spokeswoman for Abbott noted her company does not sell prescription medications in the U.S. any longer, and "discontinued co-promotion with Purdue nearly 14 years ago."
A spokesperson for Endo Pharmaceuticals said: "Endo is dedicated to providing safe, quality products to patients in need and we share the public concern regarding opioid abuse and misuse. We are committed to working collaboratively to develop and implement a comprehensive solution to the opioid crisis, which is a complex problem with several causes that are difficult to disentangle. Any serious solution must therefore be multifaceted and consider, among other things, the legitimate access needs of the millions of patients suffering from acute or chronic pain who rely on opioids to improve their quality of life.
"Toward that goal, Endo has taken meaningful action during the past year by voluntarily ceasing opioid promotion and eliminating its entire product salesforce. Endo also voluntarily withdrew Opana ER from the market following FDA’s request despite having a statutory right to challenge that request, implemented additional anti-diversion measures and terminated its new opioid product development programs.
"It is Endo's policy not to comment on current litigation. That said, we deny the allegations contained in this lawsuit and intend to vigorously defend the Company."
The fate of Cook County’s lawsuit, as well as those pressed by the city of Chicago and collar counties, may be tied up with that of most other opioid lawsuits now pending across the country.
On Dec. 20, the federal Judicial Panel on Multi-district Litigation ordered the city of Chicago’s lawsuit against the drugmakers to be consolidated with 180 other similar actions for proceedings before a federal judge in Cleveland.
That decision came about a month after a federal judge in Chicago slapped a hold on the action, until the JPML could rule on a request made in September by a lawyer in West Virginia representing nearly four dozen cities and other government agencies suing opioid drugmakers. In that petition, attorney James Peterson, of Hill Peterson Carper Bee & Deitzler, said consolidating the cases into one giant case, known as a multi-district litigation, or MDL, could save the courts and participants time and uneven outcomes, as different judges could see the same facts, yet come to markedly different conclusions on questions of law, evidence and procedure.
In the wake of the JPML’s decision, lawyers representing those counties, cities and other local governments voted to select Paul Hanley of Simmons Hanley Conroy, Joe Rice of Motley Rice and Paul Farrell of West Virginia-based Greene, Ketchum, Farrell, Bailey & Tweel, to serve as lead counsel on the opioid MDL.
Among other notable litigation, Rice played a lead role in the talks that led to the $246 billion tobacco settlement in the 1990s.
The Simmons Hanley firm is known for its work in securing an estimated $5 billion in jury verdicts and settlements, primarily related to asbestos exposure and mesothelioma lawsuits.