A pair of drug distributors are liable for their role in Baltimore’s deadly opioid crisis and must pay more than $266 million in damages, a civil jury found Tuesday, delivering the city a crowning legal victory in a public nuisance lawsuit that first began six years ago.
The drug companies, McKesson and AmerisourceBergen, will pay $192 million and $74 million respectively if the verdict survives a likely appeal.
The verdict means the jury of three men and three women found the two companies almost entirely responsible for a public nuisance caused by the misuse of prescription opioids in Baltimore. Jurors returned the verdict after nearly two days of deliberation.
The $266 million verdict brings Baltimore’s total winnings to more than $668 million, including over $400 million in settlements reached with other drug companies before the trial. The city will return to court next month for another phase of the trial, seeking billions more from the drug companies to remediate the effects of the opioid epidemic.
Baltimore Mayor Brandon Scott on Tuesday called the money “a game-changing figure that will reshape our ability to confront this crisis in every part of our city.”
“The opioid overdose epidemic has taken a toll on every community in this country, but in Baltimore, it has touched every resident in some way and devastated whole families and whole neighborhoods,” Scott said in a statement. “Today, a jury agreed that the outsized impact on our city was a direct result of the actions of big pharma.
“I am grateful to the jury for their careful deliberation, which has validated our claim against these bad actors, and sent a message that indifference for the lives of our residents will not be tolerated.”
The verdict is even more than the city’s lawyers asked for in closing arguments last week. In total, the jury found Baltimore suffered $274 million in past and future damages stemming from the opioid crisis, but the panel assigned 3% of the total responsibility for the problem to other factors, such as the illegal drug trade. The drug companies are responsible for the rest.
It’s not clear how the jury reached those figures; deliberations take place in secret and jurors left without commenting Tuesday afternoon. As she left, one juror said of the six-week trial: “It was long.”
The jury assigned 70% responsibility for the public nuisance to McKesson and 27% to AmerisourceBergen. Together, the companies were responsible for about 60% of the half a billion opioids that were shipped to Baltimore city and county between 2006 and 2019, according to federal drug dispensing data.
In an emailed statement, McKesson said the company is preparing to challenge the verdict and will appeal if those motions are denied.
“We respect but disagree with the jury’s verdict, which fundamentally misunderstands McKesson’s limited role as a pharmaceutical distributor,” the company said. “We believe this decision does not adequately take into account the compelling facts and evidence presented at trial.”
AmerisourceBergen, which is now called Cencora, also expressed disappointment in a statement.
“Cencora distributes FDA-approved medications to licensed and registered health care providers and today’s verdict further frays the legal and ethical tightrope the company is being asked to walk between providing access to necessary medications and acting to prevent diversion of controlled substances,” the company said. “Our teams are analyzing the ruling and evaluating all options moving forward, including appealing today’s verdict.”
The city’s lawsuit alleged that McKesson and AmerisourceBergen failed to monitor and halt suspiciously large orders of opioids, which enabled the diversion of pills into the illicit market.
Though Baltimore made progress in lowering the rate of heroin overdoses in the early 2000s, the city claimed that the flood of easily accessible painkillers reversed those gains and pushed a new generation of opioid users to street drugs when prescriptions became less available.
With the rise of the potent synthetic opioid fentanyl, Baltimore’s overdose death rate surged to nearly double that of any other major American city, The Baltimore Banner and New York Times reported in a joint investigation earlier this year.
The city sought more than $260 million in damages for past and future costs associated with the opioid epidemic, including policing, emergency medical services and public health measures. Punitive damages, which are designed to punish defendants for particularly egregious behavior, were taken off the table earlier in the trial.
The companies countered that they simply filled orders for legal opioids, shipping the medication to licensed pharmacies that were filling legitimate prescriptions. Their defense lasted only a few days after the city’s case, which took several weeks.
Baltimore chose a risky legal strategy designed to bring in as much money as possible for opioid remediation. The strategy paid off: Most of the companies Baltimore sued decided to settle, bringing in more than $400 million for the city from pharmaceutical giants like Walgreens and Johnson & Johnson.
That’s more than the entire state of Maryland will receive as part of a massive group settlement with Johnson & Johnson and the “big three” opioid distributors, McKesson, AmerisourceBergen and Cardinal Health. Baltimore declined to participate in that settlement and pursued its lawsuit alone.
“I think it’s a testament to the quality of the lawyering,” said Andre Davis, a retired federal judge who was Baltimore’s solicitor when the city launched the opioid lawsuit.
“The city’s decision-making throughout the process has been spot on, and [the verdict] has really vindicated the city’s view of responsibility” for the crisis, he said.
With the verdict, Baltimore joins a tiny group of communities across the nation who took their opioid lawsuits all the way to a trial and won. Some verdicts in other states have been overturned or are being appealed.
Baltimore’s outside law firm, Susman Godfrey, will receive about a third of the money awarded to the city, a standard arrangement in cases taken on contingency. The firm will also be reimbursed for costs it fronted during the litigation, though details of those expenses remain slim. The city has declined to provide a copy of its agreement with Susman Godfrey.
The city has earmarked some of the settlement funds for nonprofits with few details about how those groups were chosen or what oversight there will be for the money. The city plans to put most of the money into a trust and spend it on addiction-related programs over the next 15 years. A committee will recommend spending which will be reviewed by an “overdose cabinet.” The mayor will have the final decision.
The city’s lawsuit originally included companies from other parts of the opioid supply chain, such as drug manufacturers. Drug distributors serve as middlemen between drug manufacturers, which make opioids and other medications, and the pharmacies and hospitals that dispense to patients and customers.
Baltimore’s lawsuit focused on a small group of pharmacies where, the city argued, there were clear red flags for opioid diversion that the drug distributors should have identified. One expert witness for the city, DEA veteran and former interim Baltimore Police Commissioner Gary Tuggle, estimated that the companies should have deemed thousands of orders as “suspicious” rather than shipping them to Baltimore pharmacies.
“I saw very little due diligence and the due diligence that I did see was grossly inadequate,” Tuggle said during his testimony.
“Regulation aside, I think there’s an inherent responsibility to conduct due diligence for public safety,” he said.
The city could also win more money at a second phase of the trial that will determine how much abatement money the drug companies might have to pay.
Abatement money would be on top of the regular costs the city spends on everyday issues associated with the opioid crisis, such as needle cleanup in public parks, and would go toward addiction treatment and other programs aimed at remediating the epidemic. The city is seeking between $8 billion and $11 billion in this phase.
That portion of the case will be decided by Baltimore City Circuit Judge Lawrence Fletcher-Hill, who also oversaw the jury trial. The prospect of an even bigger financial blow at the abatement phase could prompt the drug companies to settle. That phase will begin Dec. 11.
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