Tennessee counties slap Big Pharma with lawsuit over opioid epidemic costs

In an unprecedented move, three Tennessee prosecutors are taking aim at drugmakers who supplied the opiates that addicted millions — Big Pharma — using the state’s long-ridiculed and rarely used “crack tax” law.

The district attorneys general for three upper East Tennessee judicial districts collectively representing nine counties filed a lawsuit Tuesday in Sullivan County Circuit Court against opioid drugmakers Purdue Pharma, Mallinckrodt and Endo Pharmaceuticals.

The lawsuit seeks to hold Big Pharma responsible for the opioid epidemic in Tennessee by labeling the drugmakers as drug dealers and accusing them of lying about the addictive properties of opiates and aggressively pushing the drugs as miracle cures for all manner of pain.

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It also names as plaintiffs in the lawsuit “Baby Doe,” a boy born in March 2015 addicted to opiates because his mother, identified as “Mary Doe,” was an opiate addict and bought her drugs in Sullivan County, one of the three judicial districts represented in the legal action.

Filed on behalf of the three prosecutors and Baby Doe by Nashville law firm Branstetter, Stranch and Jennings, the lawsuit spends dozens of pages detailing publicly available accounts of alleged fraud and deceptive marketing practices by opiate manufacturers.

“It is now beyond reasonable question that the manufacturer defendants’ fraud caused Mary Doe and thousands of others in Tennessee to become addicted to opioids — an addiction that, thanks to their fraudulent conduct, was all but certain to occur,” the lawsuit stated.

Tennessee logs more opiate prescriptions per capita than every state in the nation except West Virginia. Sullivan County is considered an epicenter, so much so its law enforcement agencies snared their own reality television shows.

The lawsuit comes on the heels of similar governmental legal action filed in Ohio, Illinois, Mississippi, New York and California. The Cherokee Nation in May sued in tribal court. Another lawsuit filed in Washington in January alleged that Purdue Pharma, makers of OxyContin, knew the drug was being sold on the streets and collected millions for it and did nothing to stop it.

In West Tennessee, Shelby County is considering filing a similar lawsuit.

Tennessee, however, is not a party to the lawsuit. Sullivan County District Attorney General Barry Staubus said he and his two prosecutorial partners — the 1st Judicial District’s Tony Clark and the 3rd Judicial District’s Dan Armstrong — did not consult with the state attorney general's office before filing the lawsuit.

Tennessee Attorney General Herbert Slatery III issued a statement Tuesday in which he said his office is investigating the state's options in pursuing its own legal action.

"Our objective is to identify and hold accountable the parties responsible for this opioid epidemic," the statement read.

'Crack tax' law put to new use

The lawsuit uses a 2005 law — officially labeled the Tennessee Drug Dealer Liability Act — upon which to stake the prosecutors’ bid to label the drugmakers as drug dealers and punish them financially for the devastation their drugs have wrought.

That drug dealer liability statute was dubbed the “crack tax” law soon after it was passed because it allowed civil action against street drug dealers, many of whom were peddling crack. Authorities already could seize from convicted drug dealers the profits from their black market trade under criminal and civil forfeiture laws.

Because most drug dealers went to prison after their crimes were discovered, none of them had money from which crack addicts or anyone else could collect civil damages. After a brief spate of attempts by the Tennessee Department of Revenue to invoke the “crack tax,” the law fell into disuse.

Unlike street dealers, Big Pharma has money — lots of it.

Purdue, based in New York and the maker of OxyContin, has annual sales of nearly $3 billion. Mallinckrodt, based in the United Kingdom and makers of opiates Roxicodone and oxycodone, and Endo, based in Pennsylvania and the maker of Opana, Percocet and Zydone, also rack up billions each year from opiate sales.

Big Tobacco redux

Such lawsuits borrow a page from the playbook state attorneys general used to hit Big Tobacco with the financial cost of its addictive products in 1998. States made billions and still are, money that was supposed to go to help people quit smoking and cover the government’s medical bills for the physical toll cigarettes caused. The big cigarette makers agreed to pay out $206 billion in the first 25 years, and they’ll keep paying indefinitely after that.

It didn’t stop people from smoking, or the tobacco makers from making money. Public awareness of not only the addictive properties of tobacco but the stew of chemicals in the tobacco used in cigarettes lowered the number of smokers over time.

But the opioid legal field on which this game of wielding executive power in the judicial branch of government will be played is much different for these state attorneys general.

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It wasn’t hard to prove tobacco makers hid the addictive side of their product and put the drug into the hands of unsuspecting buyers. Smokers smoked, no idea they were inhaling a drug that would hook them physically and mentally. Big Tobacco knew it. Once lawyers proved they knew it and hid it, it wasn’t hard to convince courts tobacco makers bore direct responsibility.

Big pharmaceutical companies don’t put their drugs into the hands of patients. They made the highly addictive opiate drugs and courted doctors to prescribe them. Doctors were the ones who prescribed them for all manner of pain — from a back ache to cancer. Pharmacies sold them the addictive drugs.

Who is to blame?

Not only will these state attorneys general and upper East Tennessee prosecutors have to prove information about the addictive nature of opiates was hidden from patients, but they also must show from whom it was hidden. Did the pharmaceutical companies mislead doctors? Or, did the doctors hide it from the patients? Were pharmacists to blame?

And what of the patients themselves? Smokers bought cigarettes and smoked them, a proper use of the product. They got addicted and sick. There was no black market for cigarettes.

The opioid epidemic is fueled by people who kept using the drugs even after their pain subsided and people who grew addicted after using painkillers prescribed for someone else.

The Los Angeles Times revealed in an investigation into Purdue Pharma that the drugmaker sold the drug OxyContin as a 12-hour pain reliever but knew it wore off before then. Patients suffering withdrawals then took more than prescribed, leading them to become addicted and sick.

But a long history of overprescribing by doctors also has been documented by many media organizations. Opiate addiction and mounting overdose deaths hit epidemic proportions after medical professionals began profiting from pain clinics at which the addictive drugs were doled out with little, if any, examination.

Even the Justice Department has taken aim at the medical community, particularly in East Tennessee, where the U.S. attorney’s office has successfully sent doctors and other medical professionals tied to pain clinics to federal prison.

In addition to Big Pharma, the Sullivan County lawsuit specifically names Center Pointe Medical Clinic in Kingsport, labeling it a pill mill, and two convicted opiate dealers from upper East Tennessee — Elizabeth Ann Bowers Campbell of Johnson City and Pamela Moore of Church Hill. Those defendants are accused of supplying opiates to Baby Doe's mom.

Purdue, which admitted several years ago via a criminal enforcement agreement with the Justice Department to downplaying addictive properties of its drugs, issued a statement within minutes of the announcement of the lawsuit Tuesday, denying its assertions.

"Pointing fingers will not solve the problem nor will it help those who are suffering," the statement read in part.