S.F. City Attorney leads landmark case against opioid industry

‘No amount of money or anything we can do can bring back the lives we tragically lost’

Rarely are the mega pharmaceutical companies that produce and sell opioids present in public hearings about devastating overdose rates in San Francisco. But this week and for several thereafter, they will appear in court in a landmark trial led by San Francisco City Attorney David Chiu.

Walgreens pharmacy, along with opioid manufacturers Allergan and Teva and distributor Anda, ignored and amplified opioid health risks and fueled the ongoing opioid overdose crisis in San Francisco, Chiu and lawyers for the city of San Francisco are alleging in the federal court trial.

The case is the first ever to name all three major players in the opioid supply chain, including manufacturers, distributors and pharmacies, and its outcome will no doubt have an impact on future litigation against opioid companies and pharmacies in other regions across the country.

“These corporate defendants need to be held responsible for their role in having fueled and created the opioid crisis. We need accountability for what happened,” Chiu told the Examiner. “False marketing and misrepresentations misled doctors, patients and others with regard to the impact of prescribed opioids. The defendants knew of the failure to monitor suspicious orders that led to millions of prescription pain pills flooding the San Francisco market and beyond.”

Manufacturers, distributors and dispensers of prescription opioids violated California’s public nuisance law by flooding The City with opioids and creating a health emergency, the San Francisco city attorney is alleging on behalf of the People of California.

“The magnitude of the problems that these companies created in SF can’t be overstated,” Chiu said, noting that more than twice as many people died of opioid overdoses in 2020 compared with COVID-19.

“No amount of money or anything we can do can bring back the lives we tragically lost, but we have to hold these companies available,” he added. “San Francisco has lost billions of dollars related to the opioid epidemic, and we need accountability for what happened.”

Plaintiffs argue that the companies violated the federal Controlled Substances Act and California’s Unfair Competition Law through misleading marketing and by failing to flag suspicious prescription activity. They point to pharmacists with unusually high prescription referrals or pharmacies themselves with grossly high allocations of opioids.

Deaths involving opioids have dramatically increased across the U.S. in recent years. From 2013 to 2019, overdose deaths involving synthetic opioids other than methadone increased by about 1,040%, according to the federal Centers for Disease Control and Prevention. The largest increase in opioid-related deaths occurred on the West Coast.

Here in San Francisco, the prescription drug industry was complicit in over-prescribing opioids, Richard Heimann, a lawyer for the city of San Francisco, said on Monday during the first day of the trial. More than 163,645,000 opioid doses were distributed in San Francisco from 2006 to 2014, enough for 22 pills per person per year, according to the Office of the City Attorney.

Between 2015 and 2020, opioid-related overdose deaths in San Francisco increased by 478%, and, on average, nearly a quarter of all emergency room visits at Zuckerberg San Francisco General Hospital are opioid-related.

Legally prescribed opioid painkillers such as OxyContin and Fentora, a fentanyl opioid pain medication made by defendant Teva Pharmaceuticals, can become highly addictive. Some individuals who develop addictions may seek out stronger and cheaper drugs, such as illicit fentanyl, which has been the leading substance involved in overdose deaths in San Francisco in recent years.

Across the U.S., the latest drug epidemic wave began back in 2013, when illicitly manufactured fentanyl began to increase in drug supplies. Fentanyl, an opioid, is about 50 times more powerful than other opioids such as heroin. More than 70% of overdose deaths involved an opioid including prescription opioids and synthetic opioids such as fentanyl, according to the federal Centers for Disease Control and Prevention.

All eyes on SF

Cities across the country struggling with similar overdose trends are now watching the trial in San Francisco.

The nonjury trial in San Francisco is the fourth of a series of so-called bellwether opioid litigation proceedings that have involved more than 3,000 cities and counties across the country, together comprising the National Prescription Opioid Litigation. After so many different jurisdictions brought on similar lawsuits and claims against the drug companies, a judge in Ohio selected a handful of cases to move forward to set the stage and expectations for handling similar cases.

San Francisco is one of those cases that was selected to move forward. Other bellwether jurisdictions include Summit and Cuyahoga counties in Ohio, Cabell County in West Virginia, the city of Chicago, the Cherokee Nation, and Cobb County in Georgia, among others.

A federal trial in Ohio found CVS, Walgreens and Walmart liable for fueling the opioid crisis in Lake and Trumbull counties in Ohio in November 2021. Next month, a judge will determine the amount of abatement funds that the pharmacies will owe the Ohio communities.

“The manufacturers’ false marketing campaigns and Walgreens’s failure to report and prevent suspicious opioid orders has led to an unprecedented, unyielding public health crisis in San Francisco and across the United States,” co-leads of the National Prescription Opiate Litigation plaintiff’s executive committee, Paul Farrell, Jayne Conroy and Joe Rice, said in a joint statement.

The latest trial is not the first time San Francisco has taken part in legal action against drug makers and distributors, but it is one of the first cases to appear before a judge here in San Francisco. U.S. District Judge Charles Breyer of San Francisco is presiding over the trial.

Endo, which makes the opioid painkiller Percocet, would have been another named defendant in the San Francisco trial, but the company recently agreed to settle with The City for $10 million last week before the trial began. Once approved by the Board of Supervisors, $5 million from that settlement will be made available immediately, and the remaining $5 million will be distributed over the next 10 years.

San Francisco is also poised to receive between $50 million and $61 million as part of a national opioid settlement finalized in February with pharmaceutical company Johnson & Johnson and three of the nation’s biggest drug distributors: AmerisourceBergen, Cardinal Health and McKesson.

In addition, San Francisco will also receive an undetermined amount from a $6 billion national settlement reached in March between the U.S. Department of Justice and Purdue Pharma, owned by the Sackler family.

It is not yet clear how San Francisco will use the money coming from the settlements or the ongoing trial. The city and county of San Francisco have together spent billions of dollars aimed at preventing and responding to drug overdoses.

“For too long, the people of San Francisco have had to shoulder the burden of the opioid epidemic,” Chiu said. “It’s time for these companies to pay for the crisis they created.”

sjohnson@sfexaminer.com

Correction: A previous version of this story stated nearly 80% of heroin users in the U.S. started with opioid prescriptions. That statistic was incorrectly referenced and has since been removed.

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