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Brunswick, GA— A Georgia jury today cleared three drug distributors of responsibility for the fallout from opioid abuse that 21 family members of abusers suffered, wrapping the nation’s first state court, private-plaintiff trial over the opioid epidemic. Poppell, et al. v. Cardinal Health, et al., CE19-00472.
The Glynn County Superior Court jury deliberated across two days before reaching its verdict, clearing Cardinal Health, McKesson Corporation, and J M Smith Corporation against claims that they violated Georgia's Drug Dealer Liability Act and the state’s RICO statute when supplying pharmacies with opioids.
Plaintiffs, the parents, children, and siblings of opioid abusers, claim the defendants improperly distributed opioids to pharmacies, leading to abuse of the drugs and the fallout that abuse brought with it. And the month-long trial centered largely on the defendants' performance of their role in the distribution chain - receiving opioids from manufacturers and supplying them to pharmacies - and whether that led to abuse of the drugs.
During closings Monday, the plaintiffs’ attorney, Griffin Durham Tanner & Clarkson’s James Durham, told jurors evidence showed the distributors failed to establish sufficient controls in supplying the drugs. He added they ignored DEA warnings and assorted red flags that showed pharmacies filling “pill mill” and other improper prescriptions, ultimately causing a “flood” of opioids into the area and the drug abuse in the relatives of the 21 plaintiffs.
“They picked this community to dump and to flood their drugs. Durham said. “They found willing pharmacies and they turned on the faucets. Why? Because there were millions of dollars of sales to be had.”
While Durham acknowledged other players in the opioid distribution chain may be partially responsible, he argued the three distributors bore the lion’s share of the blame in this case.
“Because these three had the spigots wide open… the overwhelming, the majority of fault in this case, should be tagged to these three distributors,” Durham said.
In his closing rebuttal Tuesday, Durham suggested jurors award between roughly $8 million and $62 million in compensatory damages for each defendant and find that punitives were warranted.
But the distributors argued that they merely served to fulfill orders and that they established sufficient controls within the limitations they had. On Monday, Covington & Burling’s Andrew Stanner, representing McKesson, walked jurors through evidence he said showed the limitations on McKesson and other distributors’ roles in supplying opioids. Stanner noted distributors were unable to view individual prescriptions to distinguish between valid and suspicious orders.
“The amount of pills that get distributed, that’s a function of how many pills get prescribed by doctors,” Stanner said. “So to say it’s distributors who are responsible for the flood is contradicted by the evidence.”
Fox Rothschild’s Nicholas Salter, representing J M Smith, agreed, noting that an overall increase in opioid prescriptions had been largely driven by a changing medical standard of care that focused more on opioid use in the early part of the century. That standard of care, Salter said, stemmed from the medical community and opioid manufacturers, and made it difficult to flag potentially improper orders.
“That standard of care is what masked the problem, what made it difficult to identify, at least from where a wholesale distributor sits, the bad doctors and the doctors who were caught up in this new medical standard of care,” Salter said.
And Williams & Connolly’s F. Lane Heard III, representing Cardinal Health, reminded jurors of evidence that plaintiffs’ relatives used and abused drugs before and separate from their opioid abuse.
“They weren’t dabbling. They were living the drug life, long before they ever started using opioids,” Heard said.
The trial was the nation’s first involving private plaintiffs asserting claims for damages stemming from the opioid epidemic. Prior trials around the country involved claims by municipal and state governments.
Opioid manufacturers and distributors face thousands of claims nationwide from both public and private plaintiffs. Over the last four years, CVN has covered several opioid trials brought by government plaintiffs, including in Oklahoma, Florida, New York, and California courts. Claims brought by state governments have led to a range of results. In Oklahoma for example, a judgment for the state was ultimately thrown out by the Oklahoma State Supreme Court. A New York proceeding led to a jury verdict in favor of the state's Attorney General, while proceedings in Florida and elsewhere have ended in mid-trial settlements.
In a statement emailed to CVN after the verdict, Cardinal Health expressed its satisfaction with the verdict. "We are pleased with the jury’s decision, which confirms that a law meant to apply to street dealers of illegal drugs cannot be used in a misguided attack on DEA-registered wholesale distributors of FDA-approved medications," the Cardinal statement said. "While today’s verdict serves as the latest recognition that we did not cause the opioid crisis, we remain committed to being part of the solution."
And a McKesson statement post-verdict noted that the company is concerned about the impact of the opioid crisis. "McKesson maintains—and continuously enhances—strong programs designed to detect and prevent opioid diversion within the pharmaceutical supply chain. We only distribute controlled substances, including opioids, to DEA-registered and state-licensed pharmacies."
Those sentiments were echoed in J M Smith's statement, which noted that "it takes its duty to comply with all state and federal laws very seriously, and supports efforts by federal, state, and local agencies to prevent medication misuse and diversion." The statement concluded the company was "pleased by the jury’s verdict in Glynn County, Georgia and... will continue to ensure that appropriate measures are in place to prevent illegal diversion while safeguarding access of prescription medication for patients with a legitimate need."
Email Arlin Crisco at acrisco@cvn.com.
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