Alleges violation of RICO, public nuisance, fraudulent misrepresentation, among other claims
SOMERVILLE, MA – Somerville Mayor Joseph A. Curtatone announced that the City filed suit today against opioid manufacturers and distributors, including the chain pharmacy Walgreens as a distributor, for their alleged deceptive and illegal promotion of opioids and failure to investigate, report, maintain effective control, and take steps to terminate suspicious orders of the highly addictive prescription drugs.
“Within the next hour, six Americans will die from opioid overdoses; two babies will be born addicted to opioids and begin to go through withdrawal; and drug manufacturers and distributors will earn millions from the sale of opioids in part due to what appears to be grievous acts of deception. This is why we have filed today’s lawsuit,” said Mayor Curtatone. “Our investigation into the opioid epidemic in Somerville points directly to these opioid manufacturers and distributors who we believe acted dishonestly and without compassion for patients, instead placing profits above all else. The opioid epidemic touches all people, and too many of our fellow residents have been harmed. The bad actors within the opioid industry must be held to account. For Somerville, that starts today. We are coming together and filing this suit to get our community and families back.”
Among other grounds, the lawsuit accuses all of the defendants of violating Massachusetts general laws, negligence and negligent misrepresentation, fraud and fraudulent misrepresentation, creating a public nuisance, and unjust enrichment. In a notable move, the City also alleges that Purdue, Teva, Janssen and Endo, the “RICO Marketing Defendants,” violated the Racketeer-Influenced and Corrupt Organizations Act (RICO), which is a provision of federal law often used to charge members of organized crime because it allows the leaders—or others who gave orders to commit crimes—to be charged along with those who carried them out. The City also alleges violations of RICO against Purdue, Teva, Endo, Mallinckrodt, McKesson, Cardinal and AmerisourceBergen, or the “RICO Supply Chain Defendants.”
The City alleges that Purdue promoted opioids deceptively and illegally in order to significantly increase sales and generate billions of dollars in revenue for Purdue’s private owners, the Sackler family. The City claims that Purdue’s strategies were quickly joined by these defendants who used misrepresentations regarding the risks and benefits of opioids to enable the widespread prescribing of opioids for common, chronic pain conditions like low back pain, arthritis, and headaches. The City also alleges that the distributor defendants failed to maintain effective controls, and to investigate, report, and take steps to terminate suspicious orders. As a direct consequence, the rampant use, overuse, and abuse of opioids has overwhelmed much of the country, including in Somerville and its residents, the City claims.
Specifically, the City alleges that the RICO defendants, while knowing that opioids were highly addictive, ineffective, and unsafe for long-term chronic, non-acute and non-cancer pain, formed an association-in-fact enterprise, the “Opioid Marketing Enterprise,” and engaged in a scheme to unlawfully increase their profits and sales and grow their share in the prescription painkiller market. They allegedly did so while controlling and paying front groups and key opinion leaders to influence physicians and consumers, and through repeated and systematic misrepresentations about the safety and efficacy of opioids for treating long-term chronic pain.
For the alleged RICO Marketing Defendants’ fraudulent scheme to work, each of them had to agree to implement similar tactics regarding fraudulent marketing of prescription opioids. This allegation relates to the belief that the RICO Marketing Defendants each financed, supported, and worked through the same key opinion leaders and Front Groups, and often collaborated on and mutually supported the same publications, continuing medical education seminars, presentations, and prescription guidelines.
“Through our investigation, we have evidence that these opioid manufacturers and distributors created the extraordinary crisis we are experiencing in Somerville,” said Somerville City Solicitor Francis X. Wright, Jr. “Our claims include their scheme to fuel the market by pumping opioids into our City and, as a result, creating a public health crisis that we must both address now and prevent for future generations.”
Somerville has had to implement numerous programs and services aimed at combatting the opioid crisis. Among them, all fire and police officers have been trained and equipped for the use of NARCAN, the Somerville Police Department has introduced a range of community policing tactics and training focused on intervention and referral to services rather than arrest for those facing addiction, and the City established the Community Outreach, Health, and Recovery (COHR) Office to match residents and families struggling with opioid addiction to appropriate services. The COHR Office also offers job training for those in recovery, coordinates care access with local providers, and conducts proactive outreach and intervention services. Significant prevention efforts are also part of the City’s response.
The City’s Somerville Office of Prevention (SOP) coordinates efforts to prevent addiction, often in collaboration with the Somerville Public Schools, where a range of student education and outreach efforts on the dangers of opioids are conducted. Narcan is supplied in all public school buildings to help prevent fatal overdoses of school-aged children, and individual referrals and counseling is provided to affected students. SOP also runs a program for seniors on safe disposal of opioids to prevent unused prescription drugs from finding their way into the hands of their grandchildren or others. In order to prevent opioid diversion, City employees also go to homes of Somerville’s senior residents, to collect and properly dispose of their opioids.
Due to a recent increase in residents overdosing in the City’s public libraries, the City now provides Narcan training on all library staff, to show staff members how to react and administer Narcan in the event of an opioid overdose. The City is also considering a pilot program through the Health and Human Services Department offering Narcan to small businesses that open their restrooms to the public in order to help save the lives of those who overdose in their businesses. Additionally, the City of Somerville holds routine training sessions on how to become a recovery coach and mentor for those who seek recovery or who are in recovery. Again, this is just a sampling of efforts.
Opioid impact in Somerville:
In 2013, there were 11 fatal opioid related deaths in Somerville; this number increased to 15 in 2014, to 17 in 2015 and to 21 in 2016.
Between 2010 and 2016, an average of 222 mg of oxycodone were dispersed per every Middlesex County resident, the County in which Somerville is located.
In 2016, Emergency Medical services administered 197 doses of Narcan, the antidote to opioid overdoses, in Somerville—4 times the amount of doses administered in any one year previously.
Those who are addicted to prescription opioid painkillers are 40 times more likely to be addicted to heroin. In 2013, there were 33 heroin-related deaths in Middlesex County, up from 20 heroin-related deaths in 2012. In 2014, this number increased to 103 heroin-related deaths in the Middlesex County—more than five times the number of deaths in 2012.
Infants who are born addicted to opioids due to prenatal exposure and suffer from neonatal abstinence syndrome (NAS) in the City of Somerville have steadily increased in the past few years. In 2013, a Somerville-area hospital saw an average of 59 cases of NAS per 1,000 births, more than triple the state average that year.
In addition, an increasing number of children in Somerville have entered into foster care because their parents or caregivers are addicted to opioids. According to members of the Somerville Police Department, there has been a steady increase in children who have been removed from their homes due to substance abuse issues.
According to the director of a Somerville treatment center, the majority of the patients who deal with opioid use disorder were originally prescribed opioids due to an injury or pain.
The defendants are Purdue Pharma L.P.; Purdue Pharma, Inc.; The Purdue Frederick Company Inc.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. N/K/A Janssen Pharmaceuticals, Inc.; Janssen Pharmaceutica, Inc. N/K/A Janssen Pharmaceuticals, Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals, Inc.; Insys Therapeutics; Cardinal Health Inc; Mallinckrodt LLC; Mallinckrodt plc; Mallinckrodt Brand Pharmaceuticals, Inc.; SpecGX, LLC; McKesson Corporation; AmerisourceBergen Drug Corporation; Walgreens Boots Alliance d/b/a Walgreen Co.; and Jane Does 1-50.
The suit is filed in the Commonwealth of Massachusetts Superior Court. Motley Rice LLC attorneys Linda Singer, Elizabeth Smith and Sara D. Aguiñiga are outside counsel for the City. They are working on a contingency fee basis (meaning they will be paid only if the suit is successful).
Read the lawsuit: www.somervillema.gov/OpioidLawsuit (The lawsuit will be posted on 1/30/19 to this address.)