ORANGE — Two Franklin County towns are now suing opioid manufacturers and distributors.
The Orange Selectboard voted unanimously Wednesday night to join an effort led by the Massachusetts Opioid Litigation Attorneys (MOLA), a national consortium of law firms including Sweeney Merrigan Law, LLP, to win compensation related to the growing problem of opioid abuse.
Greenfield became the first Massachusetts municipality to join MOLA in December, and about 90 other municipalities in the state have joined since.
“The concept is that the manufacturers of opioids — the class of drugs that includes Vicodin and hydrocodone and all the other things we read about — the manufacturers have been irresponsible in their manufacturing and distribution and control of the availability of these dangerous drugs,” said Orange Selectboard Vice Chairwoman Jane Peirce, who was designated as the town’s lead contact with MOLA attorneys.
“The idea of the lawsuit is to hold them responsible and collect some damages from them for the expenses and aggravation that the individual communities have incurred, as well as some punitive money,” Peirce added.
Specifically, damages are sought for opioid-related expenses like those of law enforcement, emergency medical services and the administration of Narcan, an opioid antagonist.
No specific amount of money the town is seeking has been established, but Peirce said she is optimistic about the lawsuit.
“It’s not clear yet what form the awards might take, or what the outcome might be,” Peirce said. “It’s moving very fast. There are some very smart people working on this. It’s very likely to have an outcome that would result in an award to any of the participants in this lawsuit.”
The MOLA litigation is not a class action lawsuit. Each town involved is a “party to” the effort, and individually identifies the expenses they’ve incurred from fighting opioid abuse, and MOLA attorneys file the lawsuit in a “local, federal court,” according to Thomas Merrigan of Sweeney Merrigan Law, LLP.
Orange has been debating whether or not to join the MOLA effort since the spring, when Merrigan gave a presentation to the Selectboard. Merrigan, formerly a judge at Orange District Court for more than a decade, witnessed first-hand the rising number of opioid-related cases in the area.
According to Merrigan, the drug companies have become a legal “nuisance” by not following certain standards set by Congress, and should be held responsible. He also cited a lawsuit by the state against tobacco companies in the 1990s, which resulted in billions of dollars in settlements, as similar to the MOLA cases.
“In 1970, Congress passed the Controlled Substances Act, which was basically a deal with the manufacturers that in exchange for the opportunity to transact in this dangerous product, opioids, they imposed on them by statute an affirmative obligation that they need to identify and report suspicious or aberrant patterns of distribution, consumption and activity,” Merrigan said, adding that the companies have “looked the other way.”
The companies named in the lawsuit are multi-billion dollar “Fortune 15” companies, as Merrigan described them. They include McKesson Corporation, Cardinal Health and AmerisourceBergen and about 20 others.
Most experts assert that many people addicted to opioids, like heroin today, started with prescription painkillers, and, according to MOLA, opioid abuse in Massachusetts has drastically increased since the early 2000s.
MOLA’s website includes statistics showing how much the rate of opioid-related deaths in Orange has grown. From 2001 to 2005 in Orange, the average rate of opioid deaths was between 2.1 to 6.1 per 100,000 people. From 2011 to 2015 in Orange, the average rate of opioid deaths was greater than 17 per 100,000 people.
Orange discussed the MOLA lawsuit in July, and sent the written agreement from MOLA attorneys to the town’s attorney, Donna MacNicol, to review.
While it was originally thought that the lawsuit would cost the town nothing, MacNicol identified one circumstance that could cost the town.
If money is awarded, the town receives 75 percent and the rest goes to the MOLA attorneys. If no money is awarded, the town gets nothing and pays nothing.
However, if the damages awarded come in the form of something other than money — if the drug companies are legally forced to provide Orange with Narcan, for example — then Orange owes MOLA for the work that won those damages.
This circumstance is “farfetched” and unlikely, Peirce said, and relayed to the Selectboard that MacNicol supports going forward with a MOLA lawsuit.
“Our attorney has assured me that she’s very confident that this is a good thing for the town, and that we stand to receive some settlement,” Peirce said, adding that the contract with MOLA allows Orange to pull out of the lawsuit at any time before a settlement at no cost to the town.
“There were 65,000 drug overdose deaths in the country last year, 2017. In the Vietnam War in total, we lost 58,000 Americans. So, the cost — the human cost — of this epidemic is really staggering,” Peirce said.
“The U.S. makes up 5 percent of the world’s population and we consume 80 percent of the opioids, so there’s some marketing going on here somewhere,” Peirce added. “In personal terms we probably all know somebody who’s been affected (by opioid abuse).”
The Healthcare Distribution Alliance, a national trade association representing drug distributors, including AmerisourceBergen, Cardinal Health and McKesson, provided the Recorder with the following statement from senior Vice President John Parker:
“The misuse and abuse of prescription opioids is a complex public health challenge that requires a collaborative and systemic response that engages all stakeholders. Given our role, the idea that distributors are responsible for the number of opioid prescriptions written defies common sense and lacks understanding of how the pharmaceutical supply chain actually works and is regulated,” Parker said. “Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation.”
But Orange, as of now, has chosen litigation as its course, and Selectboard Chairman Ryan Mailloux expressed confidence that is the right course to take.
“I feel confident from the responses I’ve seen in the email chain (about MOLA) and the guidance of Donna MacNicol that we aren’t putting ourselves in a bad place to join,” Mailloux said. “I think this will work out for us very well in the end.”
Reach David McLellan at dmclellan@recorder.com or 413-772-0261, ext. 268.