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Arkansas Lawsuit Faults Makers of Opioids

3 min read

A Sebastian County man who became addicted to opioids sued the drug manufacturers last month in one of the latest lawsuits filed by consumers, state attorneys general and local governments against opioid makers.

The lawsuit filed in U.S. District Court in Arkansas and the other cases against the larger opioid manufacturers, which sell the drugs under brand names such as OxyContin and Percocet, alleged that the makers misled the public about the addictive nature of opioids. The plaintiffs suing the opioid makers are using the same legal strategy the states used in the 1990s against the tobacco industry, which settled those cases for nearly $250 billion.

“I think it’s fair to say that the plaintiffs’ lawyers have that in mind,” said Richard Ausness, who has studied opioid litigation and is the associate dean for faculty research and the Stites & Harbison professor of law at the University of Kentucky College of Law. “Of course, it was very successful for them and for the states.”

He said that so far about 35 lawsuits have been brought by different government entities against the opioid makers.

As of late last week, Arkansas Attorney General Leslie Rutledge had not filed a lawsuit against the opioid manufacturers.

“Attorney General Rutledge is committed to tackling the prescription drug abuse epidemic that is spreading across Arkansas with an all-of-the-above approach that includes education, prevention and treatment and could certainly include litigation,” her spokesman, Judd Deere, said in an email to Arkansas Business.

Michael Ray Lewis of Sebastian County is seeking class-action status in his lawsuit over allegations that include the drugmakers misrepresented the risks of addiction and benefits of opioids. He alleged in the lawsuit that the drug manufacturers’ action “constitutes unlawful deceptive and unconscionable trade practices.”

“As time has shown us, it’s one of the most addictive substances on the planet,” said attorney Marcus Bozeman of the Thrash Law Firm of Little Rock, who is representing Lewis along with attorneys Thomas Thrash and Kenneth Shemin of Rogers.

Bozeman told Arkansas Business that Lewis’ lawsuit is on behalf of Arkansas consumers and named only the pharmaceutical companies as defendants, leaving out others in the supply chain. He said that doctors who prescribed the medication and the local pharmacies who filled the prescriptions “were duped just like we were.”

Opioids are the most commonly prescribed medications in Arkansas, the lawsuit said. And in 2012, Arkansas was eighth in the nation for prescriptions of opioid medications, the complaint said.

One of the named defendants is Purdue Pharma of New York, which vigorously denied the allegations in a statement to Arkansas Business.

“We share the concern about the opioid crisis and are committed to working collaboratively to find solutions,” the statement said.

“We are an industry leader in the development of abuse-deterrent technology, advocating for the use of prescription drug monitoring programs and supporting access to Naloxone — all important components for combating the opioid crisis.”

‘Dubious Marketing’
Professor Ausness said the opioid and tobacco lawsuits are similar in that “in both cases, you’re dealing with a … group of defendants who aren’t very sympathetic and who engaged in pretty dubious marketing behavior or policies.”

But opioids, unlike tobacco products, were and are highly regulated by the Food & Drug Administration, he said.

Ausness said the drug manufacturers could argue that their products were “highly useful” to patients.

Bozeman said he expects the drug companies to argue that the medicine was approved by the FDA. “Still, that doesn’t allow you under state law to make misleading statements about your product,” he said.

Ausness said that if one of the lawsuits were to make it to a jury he’s not sure that the plaintiffs would win. “For them winning would be getting a quick settlement before they have to invest too much in the litigation,” he said.

Bozeman said that he thinks his lawsuit has a good change to prevail. “You can never predict exactly what’s going to happen, but we feel good about our chances,” Bozeman said. “We know it’s a long road.”

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