Mass Tort: Opioid Litigation

The Opioid Epidemic has claimed the lives of nearly half a million Americans. Few communities have been left untouched, with many families devastated by the effects of opioid addiction. Because these companies placed profits over people, human lives were at risk, and many lives were lost.

According to the Substance Abuse and Mental Health Services Administration (SAMHSA), over 11 million Americans misused prescription opioids in 2016, and 2.1 million had an opioid use disorder. As more addicted people were unable to obtain the prescriptions through various means, they turned to heroin and other illicit opioids. According to the Centers for Disease Control, the “economic burden” of prescription opioid misuse in the U.S. amounts to $78.5 billion annually.

Some of the devastating impacts of opioid addiction in this country include:

• Tragic loss of life due to overdose from prescription opioids, heroin, and synthetic drugs like fentanyl
• Increased numbers of babies born who are already addicted to opioids or who must be removed from homes with parents who are addicted
• Rapid increased community expenses related to emergency services, healthcare, addiction treatment, law enforcement, foster care, and more

The Washington Post called the opioid multidistrict litigation (MDL) the “most complex in American legal history.” Across the country, states, cities, counties, tribal nations, and other municipalities have taken legal action against opioid manufacturers, distributors, pharmacies, and more recently pharmacy benefit managers (PBMs) for their role in causing the opioid epidemic. The government entities are seeking compensation for the significant societal costs, such as increased healthcare costs, emergency medical services, law enforcement, and rehabilitation, to name just a few.

Holding the Responsible Parties Accountable for Damage of Opioid Addiction

With decades of experience fighting for positive results for our clients, Powell & Majestro, P.L.L.C. is committed to compelling the responsible parties to pay for the damage caused by the intentional promotion and distribution of addictive drugs.

Opioid medications were promoted and distributed by the major drug manufacturers, distributors, and pharmacies as being non-addictive and safe pain relief. These same companies failed to comply with their duties under both state and federal law to prevent diversion of these highly addictive, lethal drugs into communities in West Virginia and nationwide. Rather than detecting, holding, and investigating suspicious orders, the manufacturers, distributors, and pharmacies flooded communities with massive amounts of prescription opioids.

Pharmacies and pharmacy benefit managers (PBMs) failed to identify concerning red-flag opioid prescriptions and implement restrictions that would have curtailed the flow of pills, knowingly ignored this information, and to increase profits, they permitted pharmacy networks to dispense billions of opioid pills into communities across the country.

Powell & Majestro, PLLC, along with its partners in a National Consortium, serves as counsel in over 700 city/county cases and 9 attorney general cases. Powell & Majestro plays a critical role on the national Law & Briefing Committee, with Anthony Majestro serving as a Co-Chair. Mr. Majestro helped develop the novel and complex legal theories involving public nuisance, standing, causation, duty and abatement, which have been successfully utilized in opioid cases throughout the country, at both the federal and state court level.

As part of the Opioid MDL Law & Briefing Committee, both Mr. Majestro and Ms. Smith participated in drafting the responses to numerous Rule 12(b)(6) and Rule 56 motions in the bellwether cases. The defendants were, for the most part, unsuccessful in their attempts to have the claims dismissed, and these initial rulings upholding nuisance claims have been cited favorably by courts across the country. They serve as part of the “on-call” law and briefing teams, monitoring discovery issues and providing rapid response to trial and discovery teams.

Mr. Majestro and Ms. Smith were team leaders involved with developing the theories of liability against the Pharmacy Benefits Managers (PBMs) and drafting the Amended Complaints in the bellwether cases.

In addition to their primary work on Law & Briefing, Anthony Majestro and Christina Smith played significant roles as members of the trial teams in across the country including in West Virginia, New Mexico, Michigan, and Nevada. This included recruiting experts and preparing them for trial, developing the abatement case, cross examining defendants’ abatement experts during discovery and trial, and drafting briefs at all stages of the litigation (prior, during and post-trial).

Mr. Majestro and Ms. Smith served critical roles in the first trial in the country against the opioid distributors on behalf of the Cabell County Commission and the City of Huntington. As members of the appellate team, they have assisted in drafting the appellate briefs and participating in mock oral arguments in preparation for oral arguments.

This landmark trial served as an impetus to the nationwide settlement with the Big Three distributors for $21 billion over 17 years which is to be used exclusively on abatement programs designed to combat the crisis. Mr. Majestro helped West Virginia’s cities and counties negotiate a separate settlement with the “Big 3” for $400 million.

To date, West Virginia’s total opioid litigation dollars have reached more than $1 billion, more than any other state per capita.

Additional national opioid settlements:

• Johnson & Johnson will pay an additional $5 billion over the next six years;
• Teva will pay up to $3.34 billion over 13 years and provide either $1.2 billion of its generic version of the drug Narcan over 10 years or $240 million of cash in lieu of product;
• Allergan will pay up to $2.02 billion over 7 years;
• CVS will pay up to $4.90 billion over 10 years;
• Walgreens will pay up to $5.52 billion over 15 years; and
• Walmart will pay up to $4.74 billion with 6 years.

Advocating on Behalf of Children Born with NAS

Mr. Majestro and Ms. Smith also work with a consortium of attorneys representing NAS Plaintiffs – children born with birth defects, cognitive deficits, developmental delays, and other symptoms associated with Neonatal Abstinence Syndrome. The NAS clients brought suit against McKinsey, a management consulting company, which provided marketing and strategic advice to clients across the opioid industry to boost sales of prescription opioids while having a unique vantage point on the opioid market. The NAS Plaintiffs seek to hold McKinsey liable for intentionally and knowingly collaborating with its manufacturer-clients in a scheme to misrepresent the benefits, conceal and understate the risks, and deliberately foster the medically illegitimate overprescription of opioids in violation of state and federal laws.

Powell & Majestro’s attorneys assisted in drafting the Amended Complaint utilizing concerted-action theories premised on aiding-and-abetting and conspiracy. While McKinsey claims it owed no legal duty to the NAS plaintiffs, its opioid manufacturer clients did, thus, plaintiffs maintain that McKinsey is liable for working with those clients to intentionally breach those duties.

Powell & Majestro’s attorneys were responsible for drafting the response to the Defendant’s motion to dismiss the Amended Complaint which included advocating the law across eight states: California, Colorado, Kentucky, Oklahoma, Nevada, Tennessee, West Virginia, and Utah. Mr. Majestro successfully argued against the motion before Judge Charles R. Breyer of the Northern District of California, who ordered that the NAS Plaintiffs claims for aiding-and-abetting, conspiracy, negligence and failure to warn could proceed.

Why Choose Us?

Successful cases must be built on sound legal theories. Powell & Majestro attorneys, led by Mr. Majestro, helped originate, develop and defend several of the most important aspects of the opioid litigation.

Judge Polster characterized the national opioid case as the most complicated and complex case ever to be litigated. As developed, those legal theories survived attempts at pretrial dismissal, which served as an impetus to settlement. The development of these theories and the successful defense of those claims reverberated across the country and served as precedent in state court litigation across the country.

Powell & Majestro, P.L.L.C. is a trusted law firm serving hundreds of government entities and individuals harmed by the opioid epidemic. Our firm has recovered substantial compensation for its clients and isn’t afraid to stand up to big corporations. We fight hard to ensure justice is served and have the knowledge and resources to get the job done.

Whether you have a case referral or would like to discuss how our firm can help your municipality, we want to hear from you. Please call (800) 650-2889 or contact us online to schedule a free initial consultation in our Charleston office. Video consultations are available for individuals who reside outside of Charleston.