Big cities take aim at prescription painkillers

AP News
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Posted: Sep 16, 2014 1:25 PM

WASHINGTON (AP) — Some of the nation's largest cities are ratcheting up their criticism of prescription painkillers, blaming the industry for a wave of addiction and overdoses that have ravaged their communities and busted local budgets.

The heightened rhetoric comes as Chicago tries to recover millions in health care costs from opioid drugmakers, alleging that companies deliberately misled the public about the risks of their drugs. It's a legal strategy that could be attractive to other cash-strapped cities, but one that experts say will face hurdles in court.

On Tuesday, health commissioners from Chicago, New York and Boston came to Washington to lobby Congress and the White House on efforts to combat prescription opioid abuse, which is blamed for 17,000 deaths per year — more than three times as many as either heroin or cocaine.

"This is a raging epidemic, and we are feeling the brunt of it in big cities across the country," Dr. Bechara Choucair, Chicago's health commissioner, said in an interview with the Associated Press.

Chicago's lawsuit, filed in July, alleges that five pharmaceutical companies deceptively marketed their drugs to treat long-term, non-cancer pain, even though that use was "unsupported by science." The allegations place the city at the center of a national debate over the appropriate use of opioids, which are frequently prescribed to treat common conditions like arthritis and back pain.

But where federal and state pharmaceutical lawsuits usually seek to recoup money spent on drugs, Chicago is also seeking damages for a range of other expenses.

"It directly affects us in terms of increased health care costs and all the indirect costs of substance abuse and addiction in terms of increased use of ambulances, emergency room visits, workplace injuries and destroyed families," said Stephen Patton, the city's chief attorney.

The city says emergency room visits due to misuse of opioids increased 65 percent to nearly 15,000 in 2011 from 2004.

Drugmakers have seized on the lack of specific instances of fraud in the city's complaint and have asked a U.S. district judge to dismiss the suit.

Chicago is facing massive financial challenges, including a $20 billion unfunded liability to its employee pension plan, the worst of any major U.S. city. Experts say other cities facing budget shortfalls could be attracted to the lawsuit.

"There are a lot of cities that need the money, and the abuse of the opioids has cost them a fortune in terms of things like emergency room visits," said Erik Gordon of University of Michigan's Ross School of Business.

The city's lawsuit mirrors a complaint filed in June by two California counties. And Chicago leaders say other cities and counties have expressed interest in joining what they say is a movement similar to the landmark legal action against tobacco companies in the 1990s.

Under that settlement, tobacco companies agreed to pay an estimated $206 billion to reimburse states for smoking-related health costs.

Indeed, the Chicago lawsuit makes direct comparisons between the tactics of tobacco companies and the five opioid drugmakers: Janssen Pharmaceuticals, Purdue Pharma, Actavis, Endo Health Solutions Inc., and Teva Pharmaceutical Industries.

Over the course of 126 pages, the lawsuit alleges that companies recruited key physician experts and "warped existing organizations to disseminate their deceptive messages" about the benefits of opioids for common pain.

Fordham University law professor Benjamin Zipursky says the lawsuit's sweeping approach could be difficult to support in court.

"There are a couple of things one could characterize as a reach," Zipursky said. "It's brought against a number of different companies in the same industry alleging that what they've done is somehow committed fraud on the public by infecting the world of medical thinking."

Still, Zipursky points out that some other highly successful lawsuits have made similar arguments about massive fraud that hurt public health.

"The cigarette lawsuits were cutting edge in all of the ways I've just indicated, and those reached a huge settlement," Zipursky says. Much will depend on what sort of internal documents plaintiffs lawyers have obtained from the drugmakers.

Chicago attorneys say they subpoenaed thousands of documents from the companies beginning in April 2013.

"We would not have brought this suit unless we thought it was on rock-solid legal footing," Patton said.