TOMS RIVER - After the initial splash about the nationwide lawsuit against several major opioid-manufacturing firms, not much has been said. That doesn't mean that nothing is going on.

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Quite the opposite, as law firms here and in South Carolina gather plaintiffs and review data to support their contention that reckless, aggressive marketing tactics factored greatly in trapping pain patients into addictions.

In a victory scenario for the plaintiffs, the manufacturers either lose the civil suit, or settle.

Whatever the payout would be, in either case, would be divided among the plaintiffs and the law firms of D'Arcy Johnson Day of Toms River and Egg Harbor Township, and Motley Rice of Mt. Pleasant, South Carolina, and offices in eight states and Washington DC, neither of whom is being paid until the conclusion.

The case is not a slam dunk. Defendant companies flatly deny the allegations, and add that warning labels, prescription guidelines and pain management recommendations are inherent in their methods. Unquestionably, attorneys representing them will have ample ammunition.

But the core matter is what occurs in the examining rooms, where it's down to doctors and patients. Giant corporations aren't in the rooms. Or are they? Andy D'Arcy, a partner in D'Arcy Johnson Day, believes that their shadows loom over this highly personal interaction.

Where does responsibility rest?

(l-r) Toms River Mayor Thomas Kelaher, Police Chief Mitch Little, Township Councilman Al Manforti (Tom Mongelli, Townsquare Media)

The goal is "to hold the manufacturers accountable," he said, "and to try to bring some relief to resources that the municipalities, the counties, and the states have had to spend in dealing with the opioid epidemic."

The action filed on Newark's behalf, alone, by D'Arcy Johnson Day and Motley Rice, cites four corporate entities housing 12 subsidiaries involved in the produciton of OxyContin, Butrans, Hysingla ER, Actiq, Fentora, Opana/Opana ER, Percodan, Percocet, Zydone and Duragesic. Any of those names ring a bell? If so, this court action carries some degree of impact on what your body and brain have experienced, positively or negatively.

Among the defendants is Janssen Pharmaceuticals, a division of New Brunswick-based Johnson & Johnson. Spokesperson William Foster, issuing comment regarding the case, pointed out that since 2008, factoring in competitors and generics, Janssen's volume of opioid products has accounted for about one percent of the total number of prescriptions written.

"We recognize opioid abuse is a serious public health issue that must be addressed. At the same time, we firmly believe the allegations in these lawsuits are both legally and factually unfounded. Janssen has acted responsibly and in the best interests of patients and physicians with regard to these medicines, which are FDA-approved and carry FDA-mandated warnings about possible risks on every product label. Janssen is committed to providing healthcare professionals with complete and accurate information on how to prescribe our opioid medications, which give doctors and patients important choices to help manage the debilitating effects of chronic pain, and we are continuing to work with stakeholders to support their safe and appropriate use." 

John Puskar, spokesperson for Purdue Pharma, supplied the following comment:

“We are deeply troubled by the opioid crisis and we are dedicated to being part of the solution. As a company grounded in science, we must balance patient access to FDA-approved medicines, while working collaboratively to solve this public health challenge. Although our products account for approximately 2% of the total opioid prescriptions, as a company, we’ve distributed the CDC Guideline for Prescribing Opioids for Chronic Pain, developed the first FDA-approved opioid medication with abuse-deterrent properties and partner with law enforcement to ensure access to naloxone. We vigorously deny these allegations and look forward to the opportunity to present our defense.”

Brick Township Mayor John Ducey (Facebook)

Strength in numbers

D'Arcy said that he is aware of separate litigation filed by the New Jersey Attorney General's office, targeting the manufacturer of Subsys (later adding a second drug maker), but noted that the action in which his firm is involved involves a much higher number of companies and communities.

Newark, Chicago, New Hampshire, South Carolina, Alaska and several counties in California were among the first to enlist, along with Toms River and Brick. D'Arcy said that communities, counties and states continue to seek their counsel. The undertaking is monumental.

"Each municipality, county and state has its own individual action," D'Arcy explained. "Ultimately, some of the discovery we're conducting for one...certainly may be relevant to others. But each municipality, county and state has its own damages, and its own set of issues. So, each case will be treated individually."

That painstaking process raises the eligibility bar for participation. In Ocean County,
D'Arcy explained, "Everyone we've spoken to wants to be a part of it. At this point, we have to be selective in terms of the municipalities where our resources are going to be spent. It's going to take a lot of manpower, and a lot of money to fund. Each case brings its own costs." He added that, in their collective views, Ocean County is "one of the hardest-hit counties in the state of New Jersey."

The two firms have prior experience in this area, taking part in a pioneering lawsuit against Merck & Co. in 2013 regarding the marketing of Fosamax, an osteoporosis treatment that allegedly caused jaw problems and femur fractures. From that action in Atlantic County grew a much larger legal challenge.

Merck settled more than 1,200 osteonicrosis complaints for $27,700,000. There were still roughly 5,000 femur-related complaints. A judge dismissed them in 2014, and an appellate panel revived them in March of this year. Merck sought a hearing before the U.S. Supreme Court in September.

Central to the litigation, and to the one now being undertaken, is that the manufacturers ignored obvious addiction issues that labels and directives alone can't resolve, in order to drive up sales and revenues.

"Sometimes, it takes civil litigation to reach answers," D'Arcy said,, drawing an antecedent in the Big Tobacco lawsuits. "Until civil lawyers became involved in attempting to change the way things were done, nothing was getting done," he observed. "Lung cancer rates were continuing to increase. If you circle the date when the Big Tobacco litigation settled, and you look at the rate of lung cancer diagnoses from that point forward, you'll see a remarkable decline."

Ultimately, then, the case is not simply an arm-wrestling match for cash. It's an attempt to change the culture in which opioids are marketed, prescribed, sold and consumed, with an eye toward maturity and responsibility.

"We're also seeking some injunctive relief," D'Arcy said. "We hope to achieve some change in the system. We hope that through our actions, there is a new and better system put in place, that starts to take us out of the crisis mode."

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