HUNTINGTON — A combination of intense marketing, national pharmacies failing to report suspicious activity, and middlemen controlling pricing between drug companies and pharmacies all contributed to the drug epidemic in Cabell County and the city of Huntington, according to an amended complaint unsealed in federal court this week as part of a nationwide opioid litigation.
The third version of the joint complaint filed by the county and the city includes scathing allegations against Purdue Pharma's founding family, national pharmacy chains and pharmacy benefit managers, among drug distributors and others, accused of creating and fueling the opioid epidemic across the county.
It alleges eight claims including public nuisance, racketeering, negligence, violation of the West Virginia Controlled Substance Act, unjust enrichment and civil conspiracy.
Local attorney Paul Farrell, who represents many of the local governments, including Cabell County and Huntington, said the complaint had remained under seal for months because it is the most comprehensive and updated of the allegations against the defendants anywhere in the country.
"We are just now allowed by the federal court to begin lifting the confidential (rulings) that have cloaked the litigation for the past two years," he said. "It is my hope we will begin to see more transparency in public awareness as the case brought by the city of Huntington and Cabell County begins discovery (exchange of evidence ahead of trial)."
Cabell County and Huntington are in line to be the second to go to trial, behind two Ohio counties that are the first set for trial in late October.
The governments were among the first of what has grown into more than 2,000 lawsuits nationwide to file against several drug companies in 2017, alleging the firms breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the states over the past several years - a duty the lawsuits claim companies have under the Controlled Substances Act of 1970.
The dozens of defendants in the revised complaint are broken down into four categories - manufacturers, distributors, national pharmacies and pharmacy benefit managers who the lawsuit alleges "created and maintained a public nuisance by marketing, distributing, selling opioids and/or exacerbating the flood of opioids into Plaintiffs' Community in ways that unreasonably interfere with the public health, welfare and safety in Plaintiffs' Community."
The revised complaint alleges OxyContin maker Purdue Pharma and the family that owns it, the Sacklers, wrongfully changed the perception of the harm opioids could cause, causing other pill companies to follow suit.
The complaint alleges until the mid-1990s, opioids were rarely prescribed for chronic pain conditions because they were believed to be too addictive, until Purdue and the Sacklers began to pour money into marketing campaigns promoting its opioid drugs, with other manufacturers following, with un-researched information distributed to doctors, pharmacists and citizens.
Scott Hadland, a pediatrician and researcher at the Grayken Center for Addiction Medicine, said studies showed areas hit the hardest by the opioid crisis were the same areas targeted by marketing opioids, the complaint said. As an example, Cabell County received 32 times more dollars in opioid marketing than the national average, or about $1,000 per person. That resulted in the medical community abandoning prior caution of opioids by incentivizing doctors, he said in the complaint.
The defendants' alleged misrepresentations ranged from stating the risk for addiction as being low, signs of addictive behavior are "pseudo addiction" and addiction is easily treated, among other things, during extensive marketing campaigns.
"Here's the fact. The manufacturers know that marketing works," Farrell said. "That's why we see television ads directed toward patients, even though it's the doctor who has to write the prescription."
This week it was announced Purdue Pharma and the Sacklers had agreed to a tentative settlement with thousands of local governments and at least 20 states - including West Virginia - just weeks before the first of more than 1,800 lawsuits filed were set to go to trial.
The agreement calls for the Sackler family to give up control of Purdue, which will file for bankruptcy. About $12 billion will then be made available to divide among creditors. Farrell said counselors are advising individual cities and counties whether they should take the deal or not.
Although not originally named in Cabell County and Huntington lawsuits, the Sacklers were named in the amended complaint because they have "left a corporate shell" by taking an excessive amount of money from the privately owned business and placing the profit into overseas corporations, Farrell said.
The complaint also alleges national pharmacy chains - CVS, Rite Aid, Walgreens, Walmart and Kroger - turned a blind eye to their obligations at local pharmacies and did not follow policy, nor report suspicious activity as required.
It says they breached their duties by "flooding West Virginia, Cabell County and the City of Huntington with opioids and failing to effectively prevent diversion, including failing to monitor for red flags" and by "failing to report or halt orders that they knew or should have realized were likely being diverted for illicit uses."
Farrell said the national chain stores sold millions of dosages in the Tri-State area and were able to circumvent the U.S. Drug Enforcement Administration by simply opening more stores, which brought in more business and hid the amount of pills being distributed.
As an example, from 2010 to 2014, Walgreens distributed 1.7 million dosages of hydrocodone and oxycodone to two of its Cabell County stores in Huntington and Barboursville. During the same time, those two stores filled prescriptions for a total of 2.4 million dosages.
The complaint alleges Walgreens' suspicious order program failed to halt or report orders at flagged stores while Tri-State area customers were filling multiple prescriptions to the same patient using the same and sometimes different doctors at unusual sizes and frequencies.
"We are attempting to choke the supply at the very top as the most efficient means of preventing the drugs from ever reaching the black market," Farrell said. "We are focused on the 'cartels,' rather than the local drug dealers."
There is one local pharmacy named in the complaint.
Safescript Pharmacy No. 6, formerly at 335 4th Ave. in Huntington, received the most opioid pills from 2006 to 2012, receiving more than 4.3 million doses — most of which came from AmerisourceBergen. In February 2012, former pharmacy owner Wendell Kent Freeman was charged with a state drug trafficking charge — which was later dismissed — after he was found with a female passenger parked in a truck with several bottles of prescription drugs, blank pharmacy labels and suspected drug ledgers.
Authorities raided the pharmacy three days after his arrest, confiscating 37 boxes of miscellaneous documents, a logbook, two computer hard drives and a tablet, according to a property return filed in February 2012.
More than 180,000 doses of hydrocodone distributed by the pharmacy were unaccounted for, however, the complaint said. The pharmacy remains open and charges filed against Freeman were dismissed by local prosecutors.
According to the West Virginia Division of Labor, Freeman is a licensed contractor.
Pharmacy benefit managers, who are also blamed in the lawsuit, administer prescription drug plans and originally worked as a middleman between pharmacies and insurance companies. A PBM plan through an entity can determine what medications will or will not be available and at what quantity.
The lawsuit alleges the PBMs received incentives and colluded with manufacturers to flood the country with opioids in exchange for compensation, Farrell said.
"The manufacturers and the chain pharmacies used the unique power and authority of the PBM to incentivize the sale of certain powerful drugs that yielded the highest return on investment," he said. "The PBMs made so much money that they actually grew financially independent and started buying up the health insurance companies they were servicing."
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