Quincy, hard hit by the opioid crisis, said Wednesday it will become the first city in Massachusetts to sue the pharmaceutical industry for allegedly downplaying the dangers of opioids and flooding the market with addictive and deadly painkillers.
With its lawsuit, Quincy will join a growing number of cities, counties, and states — including Chicago, Seattle, and Ohio — that have turned to civil litigation in an attempt to force drug manufacturers to change potentially deceptive marketing practices and to recoup public funds spent on battling the addiction crisis.
Mayor Thomas P. Koch said Quincy is acting out of a sense of frustration with the ongoing toll of the epidemic. Quincy became one of the first cities in the country to give the overdose antidote Narcan to its first responders, in 2010 and has tripled the size of its drug unit and sponsored a treatment center. Still, the city of 94,000 has been wracked by 163 opioid-related deaths over the past five years.
“The problem we have today started in the medicine cabinet, and I’ve got to believe companies, when they did all their research, had to know the potential for some of this addiction,” Koch said Wednesday. “It was so loosey-goosey, right down to the doctors distributing these like M&Ms.”
Drug companies are likely to argue that they are several steps removed from the opioid crisis because they sell a legal product licensed by the Food and Drug Administration to distributors, who sell it to pharmacies and doctors, who give it to patients who misuse it, said Richard C. Ausness, a University of Kentucky law professor, who has written about opioid litigation.
“The drug companies, at least initially, will fight this, and they have been, like trench warfare,” Ausness said, adding that companies may ultimately declare bankruptcy or seek to limit liability by selling their opioid businesses. “This is going to be a long-term struggle, and I’m not sure there are going to be any winners.”
Jodi L. Avergun, a lawyer at the Washington firm Cadwalader who has represented drug companies in other lawsuits, said Quincy must prove the makers of a medication, prescribed by doctors to treat acute pain, can be held liable for “somebody who then buys heroin that’s adulterated with illegal fentanyl.”
“To hold the drug manufacturers responsible for that is a very tall order,” said Avergun, a former federal prosecutor and chief of staff at the Drug Enforcement Administration.
Quincy’s lawsuit is being handled by Linda Singer, former attorney general of the District of Columbia, who has brought opioid lawsuits on behalf of Santa Clara, Calif., and other jurisdictions. She works for the Washington law firm Motley Rice, which will not charge Quincy a fee but will collect a percentage of any settlement or damages the industry pays.
Singer said Quincy plans to file its suit in several weeks and has not yet identified the companies it will target or the specific claims it will make. But other cities and states have argued, she said, that drug companies can be held liable for opioid-related deaths because they understated the risks and overstated the benefits of opioids to treat chronic pain. Opiod marketing, she said, was also misleading and influenced doctors, who overprescribed it.
“To mismarket a drug that addicts you — that patients can’t get off — that’s particularly culpable conduct,” Singer said.
PhRMA, the trade association that represents the drug industry, declined to comment on Quincy’s lawsuit.
However, the association said it is working with the federal government to accelerate the development of non-opioid pain medications as well as medications to treat addiction. In September, the group announced it would support limiting the supply of opioids to seven days for acute pain.
“PhRMA is strongly committed to working with health care stakeholders, policy makers and others to help address the current opioid crisis,” the association said.
Meanwhile, the State of Massachusetts is laying the groundwork for its own potential lawsuit against the drug industry.
Attorney General Maura Healey announced in September that she was part of a 39-state coalition investigating whether drug makers misrepresented the dangers of prescription painkillers and ignored the public health risks of opioid sales.
The investigation targets a number of companies, including Purdue Pharma, the maker of OxyContin.
Timothy D. Lytton, a Georgia State University law professor, said the litigation is patterned on a similar barrage of lawsuits that 46 states brought against the tobacco industry in the 1990s, which resulted in a historic settlement of more than $200 billion.
But such a successful outcome for the plaintiffs is not guaranteed.
Lytton pointed out that when cities sued firearms manufacturers in an attempt to hold them liable for gun deaths in the late 1990s and early 2000s, Congress responded by passing legislation backed by the NRA to protect the manufacturers from liability.Michael Levenson
can be reached at email@example.com. Follow him on Twitter @mlevenson.