Lawyers representing babies born with opioid dependency are trying to break away from the massive national litigation around the addiction epidemic, arguing that these particularly vulnerable victims need a legal pathway all their own.
A federal judge in Cleveland overseeing the complex lawsuit against opioid makers and distributors is encouraging hundreds of local governments, Native American tribes, hospitals and patients who filed separate lawsuits to soon reach a single settlement worth potentially hundreds of billions of dollars from companies that pushed out the powerful painkillers while downplaying their risks.
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But the attorneys for the opioid-dependent babies argued in court Thursday that their young clients’ crushing needs are being overlooked in the legal morass. They say the clock is ticking to help hundreds of thousands of kids potentially facing lifelong health and learning complications researchers are still scrambling to understand.
“These kids end up being robbed of a chance because of opioids and because of big pharma,” said Kevin Thompson, one of the attorneys representing the opioid babies.
Thompson is pushing for the babies’ cases — there are at least 13 class-action lawsuits — to be carved out from the sprawling lawsuit in Cleveland and transferred to a federal judge in West Virginia, one of the hardest hit states where roughly 5 percent of all babies are born dependent on opioids.
The defendants in the case — who include major opioid manufacturers like Purdue Pharma and Teva Pharmaceuticals, and national distributors like McKesson and Cardinal Health — and the plaintiffs’ lead counsel are pushing to keep the opioid litigation in one courtroom, with the expectation of a global settlement that could rival the $240 billion tobacco settlements of the late 1990s. They argue the opioid babies’ claims are duplicative of other cases and separating their lawsuits would undermine the national effort.
“This crisis has afflicted every part of our country and every demographic — including children — and the most effective way to secure the resources needed to meaningfully address both the epidemic and the decades-long recovery process is through the litigation as it is currently structured,” the plaintiffs’ lead counsel said in a statement.
On Thursday morning, a seven-judge federal panel in New York that considers jurisdictional disputes appeared skeptical that granting a separate legal track for the kids would help them secure a better or faster settlement.
“It’s hard for us to see how you are going to get to the head of the queue,” said the panel’s chair, Judge Sarah Vance, during a hearing on the request.
A baby is born with opioid withdrawal symptoms every 15 minutes in the United States, according to anpublished in the journal Pediatrics this year. The health effects are still being studied, and symptoms can vary. Common issues include impaired physical and mental development, hearing and vision loss and gastrointestinal problems, according to Rahul Gupta, who until September was West Virginia’s public health commissioner.
“The challenge is this was a really uncommon issue 10 years ago,” said Gupta, who is now chief medical and health officer at the March of Dimes. “We still do not have good systemic, longitudinal data.”
Attorneys for the opioid-dependent babies are seeking relief from medical bills, which are likely to reach hundreds of thousands of dollars per person. They also want the courts to order the opioid companies to fund a long-term medical monitoring program that would include screening for the kids’ neurodevelopmental problems in infancy and even help them find jobs after high school.
The lawyers are also trying to force opioid makers and distributors to turn over evidence that might shed light on how the products affect kids. For example, they say, opioid manufacturers’ testing on rats may provide new insights. However, the lawyers worry such a request would be overlooked in the sprawling litigation overseen by the judge in Cleveland.
Advocates for opioid-dependent babies see the tobacco settlements as, since only a fraction of the payouts have been spent on combating tobacco use. Much of those payments, which are still ongoing, have been used to patch budget shortfalls and cover routine government expenses. In the most extreme cases, states opted for smaller up-front payments to build schools and roads or pay government workers. Advocates for the children fear that opioid money will be used in similar ways, leaving the babies’ needs unmet.
“There’s practically nobody who’s even spending close to the minimal amount that should be spent,” said Mark Greenwold, former chief counsel for tobacco at the National Association of Attorneys General, which helped broker the tobacco settlement.
“It’s not at all what the attorneys general envisioned when they entered into the settlement, and it’s a real shame,” added Greenwold, now a senior consultant with the Campaign for Tobacco-Free Kids.
West Virginia, which has received $1.2 billion in tobacco settlement money, is case in point. State lawmakers initially required 50 percent of those funds to be put into a trust fund for combating tobacco use and state health programs. But within a few years, it used the fund to lower doctors’ medical malpractice costs and help bail out the state’s workers compensation fund. In 2007, the state sacrificed future settlement payments to bolster its retirement fund for teachers.
“Those kinds of pressures on elected officials are always going to be there, especially if there’s a big pot of money that one can dip into,” said Debra Hamilton, a former West Virginia deputy attorney general. “It is a risk we cannot take, we should not take, to make that money a political football.”
The first opioid trial in Cleveland will start next September if the sides still haven’t reached a settlement. The New York judges panel hearing the request to separate the opioid-dependent babies’ lawsuit could take weeks to decide on the issue.
If the panel sides with the babies, other groups could seek similar measures to protect their interests. Native American tribes, who worried their cases have been overlooked, have already been granted permission by the Cleveland judge to raise their own legal issues in the national litigation.
“My suspicion is that if the babies get a separate track then you’ll see a lot of individuals cases” seeking similar treatment, said David Domina, an attorney who represents Native American tribes in the opioid litigation. “I don’t think it will stay as narrow.”
Dan Goldberg contributed to this report.