The New York Law Journal reports that Suffolk County Supreme Court Judge Jerry Garguilo has refused to dismiss lawsuits against several opioid manufacturers in some of the first substantive rulings to come out of the deluge of cases brought by governments over the prescription painkillers.
There are two major legal arguments behind these cases, one against opioid manufacturers and another mainly against opioid distributors:
1) Starting in the mid-1990s, opioid manufacturers unleashed a misleading marketing push underplaying the risks of opioid painkillers and exaggerating the drugs' benefits. This, the lawsuits argue, adds up to false advertising with deadly consequences — by encouraging doctors to overprescribe the pills and getting patients to think the pills were safe and effective.
2) Meanwhile, opioid distributors supplied a ton of these pills, even when they should have known they were going to people who were misusing the drugs. This is backed by data that shows that in some counties and states, there were more prescribed bottles of painkillers than there were people — a sign that something was going very wrong. Federal and some state laws require distributors to keep an eye on the supply chain to ensure their products aren't falling into the wrong hands. Letting these drugs proliferate, the lawsuits say, violates those laws.
The court has permitted cases brought by New York counties to go forward alleging violations of New York's consumer fraud and false advertising laws, as well as public nuisance, negligence, fraud and other claims.
As per the court's ruling:
The plaintiffs allege the manufacturer defendants employed assiduously crafted, multi-pronged marketing strategies that targeted the general public through websites, print advertisements, and educational materials and publications as part of their respective campaigns to change the perception of the risks associated with prescription opioids and to de-stigmatize and normalize the long-term use of opioids for chronic nonmalignant pain,” he wrote. The defendants also hired “key opinion leaders” and funded “front groups” such as the American Pain Foundation and the American Academy of Pain Medicine.
“The manufacturer defendants' argument that the plaintiffs must allege and prove a particular misstatement led a specific physician to write a particular opioid prescription for a patient is rejected,” he wrote.
The defendants created a public health crisis that led counties to spend money on treatment programs for those who were addicted or overdosed. “Thus, the plaintiffs here are not simply seeking to recoup medical and drug cost incurred by their employees and Medicaid beneficiaries,” he wrote.