Two Kansas counties and two Missouri counties this week joined a growing tide of legal challenges to the opioid epidemic by accusing pharmaceutical companies of racketeering.
Montgomery and Bourbon counties in Kansas and Lafayette and Worth counties in Missouri filed suits in federal court against more than a dozen manufacturers and distributors, alleging nine of them are in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).
Bourbon County said in its suit that it is acting "to abate the public nuisance caused by rampant and uncontrolled opioid use and addiction, and to recoup taxpayer monies that have been spent because of defendants' false, deceptive and unfair marketing and/or unlawful diversion and distribution of prescription opioids."
The counties are represented by the Kansas City law firm of Wagstaff & Cartmell among others. Similar opioid RICO lawsuits have been filed in Mississippi, Pennsylvania, Massachusetts and Alabama.
The essence of the suits is that pharmaceutical companies aggressively pushed the pain killers while falsely representing the danger of addiction.
The companies, the Bourbon County suit said, "turned patients into drug addicts for their own corporate profit."
While opioids formerly were prescribed for short-term acute pain, the suit argues that manufacturers turned to a "marketing scheme" to persuade doctors and patients they should be used for chronic plain, which leads to addiction.
The racketeering accusation stems from efforts to expand the opioid market in what was supposed to be a "closed system" under the Controlled Substances Act.
"Finding it impossible to legally achieve their ever increasing sales ambitions," the suit says, the companies failed to "maintain effective controls against diversion of their drugs, to design and operate a system to identify suspicious orders of their drugs, to halt unlawful sales of suspicious orders, and to notify the DEA (Drug Enforcement Administration) of suspicious orders."
The result has been a public financial burden for medical care, treatment and rehabilitation, law enforcement and foster care. The lawsuit cites a study that put the economic cost of opioid abuse at more than $78 billion a year.
The suit says there were 146 opioid-related overdose deaths in 2016 in Kansas, a state that has an opioid prescription rate of 93.8 per 100 persons. According to the Centers for Disease Control and Prevention, Bourbon County has an opioid prescription rate of 116.7 per 100 persons.
Among the defendants is Purdue Pharma and related companies, which the suit says sells as much as $3 billion worth of OxyContin a year, four times as much as it sold in 2006. The suit says OxyContin now constitutes about 30 percent of the entire market for pain killers.
None of the defendants have yet been served with the latest lawsuits. But Purdue responded to a RICO lawsuit in Mississippi last year by saying the company was "deeply troubled by the opioid crisis" and was "dedicated to being part of the solution." Earlier this year Purdue said it would stop marketing opioids to doctors.
Distributors named as defendants include McKesson Corp., which has a distribution center in Olathe; Cardinal Health Inc., which has a distribution center in Leawood, and Amerisourcebergen Drug Corp., which has a distribution center in Edwardsville, Kan. The three companies comprise 85 percent of the market share for the distribution of prescription opioids, the lawsuit says.
The suit announces its intention to seek confidential data possessed by the companies and recorded by the Drug Enforcement Administration. The plaintiffs are demanding a jury trial.
"Each (distributor) has been investigated and/or fined by the DEA for the failure to report suspicious orders," the lawsuit says. "Plaintiff has reason to believe each has engaged in unlawful conduct which resulted in the diversion of prescription opioids into our community."
Last year, McKesson recommended actions "to reduce opioid diversion, misuse and abuse," including a network to identify patients that might be at a higher risk.
Cardinal Health has said it is resolved to be "a constructive part of the effort to alleviate this complex national public health crisis."
Amerisourcebergen said this spring it was creating a grant system to "redefine best practices across the country in the fight against the opioid epidemic."