Thousands of communities across the United States have sued pharmaceutical companies in the last decade, seeking accountability and money for an opioid crisis that has killed hundreds of thousands of Americans and forced governments to spend billions of dollars on drug treatment and other remediation efforts.
But only a tiny fraction of those state and local governments — about 10 total, according to legal experts — took their cases to trial. Even fewer went before a jury.
Baltimore joined that exclusive group last month, launching a trial against the drug distributors McKesson and AmerisourceBergen that has been six years in the making.
Any trial is a gamble, and this particular gamble has had mixed results in other states. In West Virginia, a federal judge ruled against a city and county that sued drug distributors, including McKesson and AmerisourceBergen, after a three-month trial.
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“The overwhelming majority of cities and counties and states around the country have opted into global settlements,” said Peter Mougey, a plaintiff’s attorney who helped negotiate a $26 billion settlement with the drugmaker Johnson & Johnson and the “big three” drug distributors, McKesson, Cardinal Health and AmerisourceBergen. A global settlement resolves all of the legal claims against a party into one agreement.
Thousands of cities and counties signed on to that settlement, including the state of Maryland. Baltimore held out in hopes of winning more money.
“Some have been rewarded for opting out and managing the risks of litigation,” Mougey said. “There are others that lost and didn’t recover anything, so if the city’s comfortable with the risk, they can be handsomely rewarded.”
- San Francisco reached a $230 million settlement with Walgreens after a federal judge found the company liable for “substantially contributing” to the city’s opioid epidemic in a bench trial.
- In Ohio, Lake and Trumbull counties won a jury trial against Walmart, Walgreens and CVS and later won a judgment of $650 million against the companies. The pharmacy operators are appealing.
- A judge in California concluded in 2021 that there was “simply no evidence” that drug manufacturers were liable for the opioid crisis, rejecting claims from local governments and handing a win to companies including Johnson & Johnson.
- The Oklahoma Supreme Court also overturned a $465 million ruling against Johnson & Johnson in 2021, wiping out the state’s victory in the first state opioid case to go to trial.
Why did Baltimore pursue such an aggressive legal strategy? The severity of the opioid crisis here offers a clue.
Baltimore’s overdose death rate is nearly double that of any other major American city, a Baltimore Banner/New York Times investigation found this year. Signs of the crisis are everywhere, as the city’s lawyers have emphasized to jurors at the opioid trial.
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Photographs displayed during opening statements showed discarded syringes, emergency medical technicians administering lifesaving treatments to overdose victims on the streets, and the ruined interiors of vacant houses.
“The worst opioid epidemic in America is right here in Baltimore,” the city’s lead attorney told jurors this week. “It doesn’t have to be that way.”
The ubiquity of Baltimore’s opioid problem was almost certainly a factor the attorneys considered as they weighed whether to take the case to trial or join a global settlement, lawyers and legal experts said. The pool of possible jurors — city residents — was all but ensured to be familiar with the consequences of opioids.
“Pretty much everyone has been touched by the epidemic in some way,” said Liza Vertinsky, a professor at the University of Maryland Francis King Carey School of Law who has written about opioid litigation. “Baltimore is already an outlier in terms of the negative effects of opioids, so it’s not a great place to be if you’re a defendant in an opioid trial.”
It’s possible the city will settle with McKesson or AmerisourceBergen during the trial. Several opioid cases have settled while a trial was ongoing, including one in Washington state that ended with a $518 million payout from drug companies at the close of evidence in a six-month trial.
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Baltimore settled with a number of defendants before trial, winning over $400 million before jurors ever entered a courtroom. That’s more than the entire state will receive as part of that $26 billion global settlement, which was divvied up among thousands of state and local jurisdictions that participated.
Thomas Minkin, a Baltimore lawyer who spent his career handling asbestos cases at Peter Angelos’ law firm, said the city’s decision was a bold move.
“I think it was gutsy of the city to do that, but I think they were right,” he said.
He thinks it’s likely the city’s opioid case will settle before reaching a verdict.
“The reality of it is, it is probably nigh impossible to find somebody that is not aware of the fact of how bad the opioid epidemic was in Baltimore,” he said. “Thinking like a defense lawyer, I’m surprised, frankly, that [the drug companies] didn’t cave in.”
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Baltimore is a favorable jurisdiction for plaintiffs for a host of reasons, Minkin said, including its political, economic and racial makeup. Jurisdiction can make a big difference in the outcome of a civil trial, and Baltimore is not a friendly jurisdiction for corporate defendants, experts said.
“A lot of cases that would be won in the liberal jurisdictions are lost in the conservative jurisdictions, and when they’re won, the verdicts are typically much smaller,” he said.
Still, there is risk in taking a case to trial, and opioid companies have won legal victories using similar playbooks to the one they’re employing in Baltimore. Using some of the same lawyers, arguments and witnesses, the companies successfully won a bench trial in West Virginia, where a judge decided the case instead of a jury.
“There is no admissible evidence in this case that defendants caused diversion that resulted in an opioid epidemic,” Senior U.S. District Judge David A. Faber wrote in that case. “At most, there is only a reasonable inference that someday, somehow, some of the opioids that defendants shipped fell into the wrong hands. That is not enough to sustain a reasonable finding that defendants here caused diversion of opioids or an opioid epidemic.”
Baltimore alleges that McKesson and AmerisourceBergen ignored their legal responsibility to halt suspicious or unusually large orders of opioids during the height of painkiller prescribing in the U.S., contributing to an enormous oversupply of the drugs.
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Drug distributors serve as middlemen between drug manufacturers and the pharmacies and hospitals that dispense medications to patients and customers. The city’s lawsuit originally included a number of other pharmaceutical companies, including manufacturers and pharmacy chains.
Millions of pills flooding into the city reversed Baltimore’s progress in addressing heroin overdoses, the lawsuit claims, and made existing problems worse by introducing new users to prescription opioids. The city’s expert witnesses say opioid users turned to cheaper and more deadly street drugs when the supply of prescriptions dried up in the early 2010s, pushing Baltimore’s overdose rate to an unprecedented level.
The drug companies counter that they were filling legal prescriptions written by licensed doctors, who determined the demand for opioids. And they argue that the standard of care for pain treatment changed dramatically in the 1990s and early 2000s, with an emphasis on providing opioids for chronic pain when previously they had been reserved for severe cancer pain and end-of-life care.
Many medical boards and advocacy groups also called for increased use of opioids in response to the perceived undertreatment of pain. Doctors prescribed more because they were being told opioids were a safe treatment option for pain. And drug companies met the increasing demand for the drugs.
“There were many contextual factors that laid the foundation” for the opioid crisis, said Peggy Compton, a professor at the University of Pennsylvania School of Nursing.
“Certainly, big pharma played a role. We can’t say that they didn’t,” Compton said. “But I think we also, in many ways, set the stage for them to play that role.”
Mougey said Baltimore’s aggressive legal strategy has a chance to win a substantial payoff, especially considering the city’s lawsuit survived the drug companies’ efforts to have it thrown out at earlier stages of the case.
“Most cities, counties and states across the country took the path of least risk to recover the settlement value,” Mougey said. “When spread out to all the cities and counties, it gets diluted pretty quickly. There’s a chance for a very, very large recovery for the city of Baltimore.”
“Now they just have to convince a jury that they have a solid claim,” he said.
Madeleine O’Neill is a Baltimore-based freelance reporter.
