After winning more than $266 million at a trial against opioid distributors last month, the city of Baltimore will return to court this week to ask for an even bigger pot of money.

Baltimore is seeking more than $5 billion at a second trial phase, known as an abatement hearing, that begins Wednesday and could last for several days. A judge, not a jury, will decide how much money the drug distributors have to pay during this phase. The city believes the money would help address chronic problems caused by substance abuse.

The drug companies say the city’s request should be rejected entirely.

A jury of six Baltimoreans already found the companies, McKesson and AmerisourceBergen, primarily responsible for a public nuisance caused by the misuse of prescription opioids in Baltimore. The $266 million in damages is intended to cover the money Baltimore has already spent, or will spend in the next few years, on specific problems linked to the opioid crisis.

Abatement is different. It forces defendants to clean up their mess going forward, often by paying money or taking other steps ordered by a court.

“Damages are really for what happened in the past,” said Bruce Poole, an attorney in Hagerstown who helped handle opioid lawsuits for several Western Maryland communities. “Abatement is: ‘Make it stop.’ ”

The city has submitted a 90-page abatement plan that includes proposals in three categories: harm reduction, opioid use disorder treatment, and prevention. In all, the city is requesting about $5.2 billion to pay for the plan over a period of 15 years.

Baltimore initially requested about $11 billion, but cut that number down significantly after the jury verdict to account for the percentage of people whose opioid use disorder was caused by prescription opioids, as opposed to illicit drugs, and to exclude people who have not yet been exposed to opioids.

The 15-year period “represents the lower bound necessary to address the opioid epidemic, and the interventions that I propose would remain efficacious and justified for longer,” wrote Susan Sherman, the city’s abatement expert and a professor at the Johns Hopkins Bloomberg School of Public Health.

“Even after 15 years, the opioid epidemic will continue to impact those who have lost family members to opioid overdoses, survivors whose lives have been altered, and communities that have experienced significant impacts,” she wrote. “Prevention of new cases of opioid addiction and fatalities will require continued investments.”

In Ohio, a federal judge in 2022 granted two counties only about 20% of their original abatement request against a group of pharmacies in one of the only examples of an abatement hearing in an opioid lawsuit nationwide. The sum was still significant: while the counties sought more than $3 billion, U.S. District Judge Dan A. Polster ordered the pharmacies to pay about $650 million.

Polster found the pharmacy chains responsible for about a third of total abatement costs to account for other pharmaceutical companies’ roles in the opioid supply chain. Public-nuisance lawsuits have accused drug companies of manufacturing and shipping out millions of opioids without doing proper due diligence, contributing to a massive oversupply of addictive painkillers.

Drug companies have challenged whether they can be forced to pay abatement costs. In Ohio, the pharmacies refused to provide their own abatement plan, even after the judge ordered them to do so. An appeal of the $650 million award is pending before the Ohio Supreme Court.

A federal judge in West Virginia rejected an abatement proposal in 2022 aimed at remediating the “downstream harms” of the opioid epidemic. Other courts have also expressed skepticism about abatement in opioid cases, creating a gray area that the drug companies are likely to seize on in Baltimore.

In the Ohio case, the judge emphasized the difficulty of calculating and assigning blame for a problem as complex as the opioid crisis: “All of this brings us to the present moment, where the undersigned must do something no federal judge in history has had to do: determine in equity the scope and cost of the measures necessary to address a small piece of a terrible and tenacious and escalating national tragedy.”

Fletcher-Hill will face a similar challenge.

Baltimore’s lawsuit argued that the influx of opioids shipped into the area by drug distributors created a new population of people experiencing opioid use disorder; after prescription painkillers became more difficult to access amid federal crackdowns, users turned to illicit street drugs like heroin and fentanyl, which fueled a deadly overdose crisis.

The city’s abatement plan includes a wide range of proposals, including mobile treatment services, rapid overdose response teams, transportation assistance to help people with opioid use disorder get to treatment, reentry services, supportive housing and support for children whose parents are living with opioid use disorder.

In the Ohio case, Polster limited the proposed abatement strategies to those that seemed likely to reduce the number of people experiencing opioid use disorder. Other proposals, such as grief counseling for the families of overdose victims, were rejected as too distant from the public nuisance.

Baltimore’s request may seem high, but considering the enormity of the devastation wrought by the opioid crisis, it’s a low price tag, said Kristen Pendergrass, the vice president of state policy at Shatterproof, a nonprofit dedicated to reversing the addiction crisis in the United States.

“On a practical level, money is going out into communities, and these programs need these funds,” Pendergrass said. “It’s incredibly helpful to provide more services, to provide more resources, to provide infrastructure, but in the grand scheme of things, it’s really not that much.”

Poole, the Hagerstown attorney, said he expects a large abatement award in the Baltimore case because of the deep-rooted problems associated with opioid addiction and the expense of treating opioid use disorder. The money likely won’t cover everything Baltimore needs, he said.

“Just because you can’t fix everything doesn’t mean you shouldn’t go out and fix a lot of things,” he said.

Madeleine O’Neill is a Baltimore-based freelance journalist.