What does a $260 settlement suggest for future opioid drug cases?

JUDY WOODRUFF: Today was supposed to be the
start of a landmark trial against drug companies and distributors for their respective roles
in the opioid epidemic and the devastating toll it has left across the country. But just hours before a jury was set to hear
arguments, several companies announced a settlement with a pair of counties in Ohio. This trial was expected to set the benchmark
for more than 2,000 other lawsuits against the companies. As William Brangham tells us, that reckoning
has been delayed, for now. WILLIAM BRANGHAM: Today’s $260 million settlement
covers just two of the roughly 2,400 cities, counties, states and Native American tribes
that have suits pending against the major corporations involved in the distribution
and sale of opioids. This settlement involves the big three distributors,
McKesson Corporation, AmerisourceBergen, and Cardinal Health, as well as Teva Pharmaceutical,
which is an Israeli drugmaker. But thousands around the country are watching
to see whether a much bigger national settlement can be reached, possibly as high as $50 billion. Let’s look at how this deal took shape and
what comes next. Lenny Bernstein of The Washington Post has
been covering this case from the very beginning. He’s in Cleveland, where the settlement was
announced. Lenny, welcome back to the “NewsHour.” Before we get to these other thousands of
cases that are still pending, some form of an agreement, tell us what was settled late
last night between these two Ohio counties. LENNY BERNSTEIN, The Washington Post: What
the counties and the drug companies have agreed on is that, instead of going to trial, the
big three distributors will provide $215 million in cash, and Teva will provide another $20
million in cash and anti-addiction drugs. That money goes as quickly as possible to
the people in Cuyahoga and Summit counties, who need it for treatment, for law enforcement,
to take care of foster children, for all the needs created by the opioid epidemic. WILLIAM BRANGHAM: And my understanding is
everyone is watching this particular case, the one that was just settled, to see it as
something of a bellwether. How would a jury react to the evidence presented? How would a jury react to the counterarguments
made. Is that right? LENNY BERNSTEIN: Precisely. This was chosen by the federal judge, Dan
Polster, as a bellwether, a litmus test, of how other communities might fare at trial. Well, you didn’t have a trial. So the jury didn’t get the numerous questions
that the plaintiffs were going to put before them in their effort to say that these drug
companies are culpable for the epidemic. What you got instead was a negotiated settlement. So, that gives us some data, a reference point,
but it doesn’t give us an up or down on the drug companies’ behavior. WILLIAM BRANGHAM: Just to bring people who
may not be following this that closely up to speed, can you just remind us, briefly,
what are the plaintiffs arguing, what are the defendants arguing in these multitude
of cases? LENNY BERNSTEIN: Sure. Let’s start with this one. The plaintiffs argued that the drug companies
created a public nuisance — that is, they endangered the health of residents of Cuyahoga
and Summit counties, by pouring all these opioids into the public domain, where, inevitably,
some portion of them would be diverted to illegal use. They also accused the drug companies as acting
as a cartel, almost like a drug cartel, by working in concert to spread the message that
these drugs were not that addictive and that they could be used for a wide variety of aches
and pains, but actually only intended for cancer pain, end-of-life care, certain diseases
that are extremely painful. So, many of the other plaintiffs have adopted
similar arguments. In fact, the public nuisance argument that
I referred to carried the day in Oklahoma, where a state judge agreed that Johnson & Johnson
had created a public nuisance, and ordered that company to pay $572 million. WILLIAM BRANGHAM: And my understanding, too,
is that the companies themselves have argued, look, we were operating in a regulated market. The FDA, the DEA, they were all supposed to
be looking after this, and that we were — we were really not guilty in all of this. But I wonder if you could just tell me, help
us understand now. If the — if a jury trial wasn’t held, and
this settlement is a bellwether of sorts, what are we to read from this settlement for
all of these other cases? LENNY BERNSTEIN: Well, it’s fuzzy, but it’s
more information than we had before. Thousands of other communities are looking
at this settlement right now, as well as the drug companies themselves. They’re looking at this settlement. And everybody is trying to assess the strengths
and weaknesses of their relative positions. There’s also the attorneys general who have
sued the drug companies in state courts. And they want in on the action as well. So everyone is trying to assess the strengths
and weaknesses of their position in this sort of global negotiation, which is very fluid,
and trying to come up with where they might position themselves to gain the most. Now, we know that the drug companies are not
going to hand out 280 — I’m sorry — $260 million to thousands of counties. There’s just not enough money for that. So where do we go from here? How do we negotiate? Some people are going to have to come up,
some people are going to have to come down, some people are going to have to change their
time frames, if a deal is going to get done. WILLIAM BRANGHAM: My understanding from some
recent reporting is that there’s a bit of a dividing line amongst the litigants in this
case, that some attorneys general are seeming to want to push for a tougher fight, and others
seem to be more ready to settle. Is that — is that how you read it? LENNY BERNSTEIN: Yes, but that’s largely in
the Purdue Pharma case. As some people — your viewers may remember,
Purdue Pharma is also trying to craft a huge nationwide settlement that would get rid of
all the litigation against them over OxyContin. And the attorneys general are divided roughly
along party lines. More Republicans are interested in settling
with Purdue, where Democrats are interested in pushing harder for more money, particularly
money from the Sackler family, which owns the — owns the company. Now, all of that is playing out in bankruptcy
court, a totally separate venue from the ones that we have already talked about. WILLIAM BRANGHAM: Is there any chance — I
mean, this judge in Ohio has said he wants to bring all of the parties together and force
a settlement. Is there any chance, from your reporting,
that a grand settlement may not actually come to pass? LENNY BERNSTEIN: Well, the alternative is
really sort of untenable. Imagine if 2,400 cities and counties, one
by one, went through lawsuits, or right up to the edge of a lawsuit, as Cuyahoga and
Summit did today, again and again and again and again against various drug companies,
some against the pharmacies, some against the distributors, some against the manufacturers. We would be at it for decades. So I think there is little alternative to
some kind of a widespread, global negotiated settlement. But, right now, we’re not there. WILLIAM BRANGHAM: All right, Lenny Bernstein
of The Washington Post, thank you very much. LENNY BERNSTEIN: My pleasure.

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