A Case Unlike Any Other: New York vs. the Opioid Supply Chain
New York's expansive lawsuit is the first involving opioids in which the outcome will be decided by a jury rather than a judge.
The sprawling opioid trial in New York — the first in the country to prosecute the entire opioid supply chain — began Tuesday with opening arguments in Central Islip, Long Island, in a case that will provide rare insight into the machinery that fueled a drug scourge.
There was not enough space in the courtroom for the seven defendants, who included opioid manufacturers, distributors of the pills, their subsidiaries, and their armies of lawyers. The judge is hearing the case at a local law school's auditorium.
The trial, in which Nassau and Suffolk Counties have joined the New York State Attorney General, is the first in which the outcome will be determined by a jury rather than a judge. Initially, the broad case included several pharmacy chains that dispensed opioids, but all were dropped from the case in the days leading up to the trial following a flurry of settlements with New York, the details of which have not been finalized.
Six jurors and six alternates will hear testimony from what is expected to be hundreds of witnesses inside the auditorium at Touro College's Jacob D. Fuchsberg Law Center, as prosecutors seek to establish that the industry operated as a network of profiteers who profited from increasing the flow of pills into New York while ignoring the human cost.
Jayne Conroy, the Suffolk County prosecutor's opening statement, stated that she would attempt to demonstrate how drug manufacturers and distributors operated in a "parallel universe" from those suffering from the ravages of opioid addiction. “Death and devastation in communities,” Ms. Conroy stated, “and boardroom celebrations of blockbuster sales and profits.”
According to federal data, prescription and street opioid overdoses have killed 800,000 people nationwide over the last two decades.
The defendant most widely blamed for the opioid epidemic was conspicuously absent from the makeshift courtroom — Purdue Pharma, the maker of OxyContin, which is owned by members of the billionaire Sackler family.
Purdue University and several individual Sacklers were initially named in the case. However, nearly two years ago, as Purdue faced thousands of opioid-related lawsuits, the company filed for bankruptcy, putting the company and the Sacklers on hold.
Additionally, Johnson & Johnson, the parent company of Janssen Pharmaceutical Companies, agreed to pay more than $230 million to settle the case with New York over the weekend. The settlement ensures that the company will remain permanently out of the opioid business in the United States.
Johnson & Johnson, which claims its drugs account for less than 1% of opioid prescriptions, was a significant supplier of the ingredients used to manufacture opioids to other manufacturers until 2016. Additionally, it will no longer be tried.
Additionally, the New York complaint named four major pharmacy chains as defendants: Walmart, CVS, Rite Aid, and Walgreens. However, in the weeks leading up to the trial, three defendants were dropped from the case, and prosecutors announced on Tuesday, just before opening arguments began, that the fourth, Walgreens, had been dropped as well.
CVS confirmed through a spokesman that the pharmacy reached a settlement agreement with Nassau and Suffolk Counties, the terms of which must be approved by the county legislatures prior to any financial compensation being determined.
Rite Aid, Walgreens, and Walmart did not respond to requests for comment via email. County attorneys declined to comment on the specifics of the pharmacies' withdrawal from the case.
Even without the settlements, a sizable portion of the opioid industry is poised to take a stand, including generic drug manufacturers such as Teva Pharmaceutical Industries Ltd. and Allergan Inc., as well as large suppliers of the pills such as Cardinal Health and McKesson Corp.
Perhaps the case's breadth is both its strength and weakness: According to plaintiffs' attorneys, the trial, which could last four months, will demonstrate a significant portion of the scope of an industry that purports to treat pain patients but profits from addiction. However, that industry is regulated by federal agencies, and the defendants assert that they were manufacturing, distributing, and dispensing approved prescription drugs.
Furthermore, the sheer volume of evidence may overwhelm jurors. The companies' legal teams are expected to blame not only one another, but also those who are not present, such as Purdue and the Sacklers, in what is known as the empty chair defense.
Over 3,000 lawsuits have been filed across the country against individuals and entities involved in the opioid supply chain. According to data from the New York State Department of Health, opioids in both prescribed and illicit forms killed 3,000 people in New York in 2018.
Two opioid trials are currently underway: one in California against multiple manufacturers and one in West Virginia against a group of distributors.
Prosecutors initially asserted numerous legal claims, including negligence and fraud, but state Supreme Court Justice Jerry Garguilo narrowed them to just one for this current trial: that the defendants facilitated the opioid crisis, creating a public nuisance — and thus are financially responsible for resolving it.
Jurors will not be asked to determine damages; rather, they will be asked to determine which defendants, if any, are liable. If New York wins, a second trial will be held to determine the amount owed. According to a study conducted by the Fiscal Policy Institute, a nonpartisan policy research organization, the opioid crisis cost Long Island $8.2 billion in economic damage in 2017, the most recent year for which the Fiscal Policy Institute conducted research.
Any funds recovered will not be distributed to those harmed by the opioid crisis, but will instead be used for abatement — mitigating harm and preventing future crises through measures such as education and addiction treatment programs.
Plaintiffs in the New York case argue that the defendants are also responsible for a large portion of the devastation caused by drugs such as heroin and fentanyl, which opioids serve as a gateway to.
According to court documents, the defendants argue that such claims are overbroad and that their culpability cannot be established.
In general, they assert that the pills were manufactured or distributed legally. They assert that any oversupply or abuse is the fault of those tasked with monitoring opioid consumption — doctors, but also the federal Drug Enforcement Administration and even New York State and Suffolk and Nassau Counties, which regulate pharmacy licensing and have police departments dedicated to combating illegal drug use.
The D.E.A. has always been responsible for setting the supply of opioid medications through annual quotas, while demand is determined by licensed physicians who write prescriptions based on their independent medical judgment, according to a statement from defendant AmerisourceBergen. Additionally, the company stated that it "had no role in collaborating with the D.E.A. to establish quotas, nor did we interact with physicians or patients to recommend specific medications."
According to Justice Garguilo's instructions, prosecutors' only burden in the New York case will be to persuade a jury that all links in the distribution chain share responsibility.
“While some manufacture the pills, others load them onto trucks and ship them out, and still others stock them on shelves, they all have the same goal and employ the same tactics, profiting from each of the falsehoods they spread,” said Ms. Conroy of Simmons Hanly Conroy, a Suffolk County attorney. “That is the case's great secret: it involves a large number of defendants but does not involve a complicated story.”
“The beauty of the law is that it does not require a single person to be held accountable — each and every one of these companies contributed to this epidemic,” she explained. “There is blame aplenty.”