Dana Nessel sues opioid firms under Michigan law intended for drug dealers

With opioids killing five Michiganders a day last year, the state’s top health and law enforcement executives are going after pharmaceuticals distributors in a novel way — by treating them like drug dealers.

The state of Michigan filed a lawsuit Tuesday that Attorney General Dana Nessel touted as the first in the country to go after opioid distributors using a law passed to pursue drug dealers. Nessel announced the suit along with Gov. Gretchen Whitmer and the state’s chief medical executive, Dr. Joneigh Khaldun.

The Wayne County Circuit Court suit, filed in Detroit, names as defendants Deerfield, Illinois-based Walgreens, Ohio-based Cardinal Health Inc., Texas-based McKesson Corporation, and Pennsylvania-based AmerisourceBergen Drug Corporation.

The companies “blithely went about their business,” creating a “barrage” of pills that created the state’s deadly addiction, said Kelly Rossman-McKinney, Nessel’s spokeswoman, allegations the companies have denied.

In 2018, more than 2,000 of roughly 2,600 drug overdose deaths in Michigan were opioid-related. It was the first time in six years that overdose deaths decreased in the state, albeit slightly.

According to the Washington Post, cited by the Michigan suit, nearly three billion opioid pills arrived in Michigan between 2006 and 2012 (amounting to more than 1.1 million pills a day). 

“The addicts created by the wide availability of prescription opioids turned anywhere they could to feed their addictions… In addition, many opioid users, having become addicted, but no longer able to obtain prescription opioids, have turned to heroin,” the 100-page lawsuit claims.

The suit aims to hold defendants “civilly liable for the devastation that their facilitation of the illegal opioids market in Michigan has wrought.” Nessel, on Tuesday, projected damages against the defendants to exceed $1 billion, according to The Detroit News. 

According to the suit, the defendant drug companies sold opioids “in ways that facilitated and encouraged their flow into the illegal, secondary market” without proper safeguards. The companies failed to monitor or report suspicious orders, including by knowingly selling pain pills to so-called pill mills, the suit charged. 

The companies also face allegations elsewhere that they helped fuel the national opioid epidemic. 

In a written statement provided to Bridge, AmerisourceBergen noted its role “across different therapies, with the distribution of opioid-based products constituting less than two percent of our sales.”

The distributor said it is “committed to collaborating” in the fight against opioid abuse and refuses service to customers who might misuse the drugs. It said it also provides daily information to U.S. Drug Enforcement Administration about “every single order of these products that we distribute.”

A spokesman with Healthcare Distribution Alliance, the national trade group representing wholesale distributors, noted that these companies specialize in logistics, rather than drug research, manufacturing, marketing or prescribing. 

“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,” spokesman John Parker said in a statement.

“Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation,” he said.

In October, Cardinal Health, McKesson and AmerisourceBerger agreed in a settlement to pay $215 million to two Ohio counties, Cuyahoga and Summit, as part of federal opioid litigation. As part of the deal, a drug maker also will contribute $20 million in cash and $25 million worth of generic Suboxone, a drug used to treat opioid addiction.

The three distribution companies did not admit to any liability in the Ohio litigation, according to press releases on their respective web sites.

“While the companies strongly dispute the allegations made by the two counties, they believe settling the bellwether trial is an important stepping stone to achieving a global resolution and delivering meaningful relief,” press releases read on each web site.

In Michigan, the four distributors provided more than 75 percent of the opioids provided to Michigan, according to the Tuesday lawsuit. McKesson was the top distributor of oxycodone and hydrocodone in Michigan, with AmerisourceBergen, Cardinal Health, Walgreens being the second, third, and fourth largest suppliers, according to the lawsuit.

Rossman-McKinney, Nessel’s spokeswoman, said the state originally considered suing under a federal consumer protection law, but that statute would have required the state to prove the drugs were faulty or flawed.

They are neither: “The opioid pills do exactly what they are manufactured to do,” Rossman-McKinney said.

So the state sued under the Michigan Drug Dealer Liability Act of 1994. 

“Defendants used their licenses to distribute controlled substances in Michigan as a cover for what is essentially a criminal enterprise,” according to the lawsuit.

“This was not only negligent; it was unlawful, a public nuisance and, as a result, their actions subject these companies to liability under Michigan’s Drug Dealer Liability Act,” Nessel said in a statement.

In November, Whitmer announced a state goal of reducing the number of opioid deaths by half in five years. Nessel said Wednesday said she and the governor had promised “that the state would no longer sit on the sidelines while companies profited from an addiction they helped create  – an addiction that has claimed loved ones from our families and has devastated our communities.”

“The opioid epidemic continues to be fed by these companies precisely because the fines and suspensions imposed by the DEA did nothing to change their business practices,” Nessel said, according to the announcement from her office. 

Stephan Currie, executive director of the Michigan Association of Counties, said he was encouraged by the suit and that it will complement legal efforts elsewhere. 

The long-term goal is prevention and education. Short term, he and others hope that counties will be reimbursed for damages caused by addiction and misuse — additional costs for court time, jail space and public health outreach, for example.

“There are major costs that the counties have already borne,” he said.