OPINION

Dollars in the Water: The Bureaucratic Morass of a Trial Lawyer Feeding Frenzy

Recently, there’s been significant media attention surrounding the release of a Drug Enforcement Administration database that contains detailed information on shipments and sales of prescription opioid medications by manufacturers, distributors and pharmacies.

Plaintiff lawyers reacted eagerly to the news, issuing statements on how the data allows the public to pinpoint the origins of the crisis of opioid misuse.

A fact lost in the fervor around the release of the database is that its data was all individually provided by the companies named within the database, and that none of these companies was given access by the DEA to the combined figures we’re seeing today. Only the DEA had access to such information that could have been used to identify suspicious activity as the opioid crisis grew.

What has not been widely reported is that an investigation by the House Energy and Commerce Committee determined that “the DEA did not effectively use ARCOS data” and specifically that it did not analyze its own database to proactively identify outliers and bad actors.

The data contained in the ARCOS database was just one way companies communicated with the DEA. The same congressional report highlighted thousands of suspicious order reports from distributors to the DEA on suspect activity in West Virginia alone — including hundreds from my company, AmerisourceBergen, for just a single pharmacy that didn’t result in the revocation of its controlled substances registration — from 2012-17.

Several distributors have testified before Congress that they had no information on how the DEA used suspicious order reports, and that the report of suspicious orders did not seem to have any overt impact on whether the government agency would maintain its licensing and registration for a pharmacy.

And even when pharmaceutical distribution companies did try to cut off a pharmacy, there was no guarantee that they’d be allowed to.

In 2018, AmerisourceBergen identified that an Alaskan pharmacy customer was ordering a disproportionate number of opioids. After conducting extensive due diligence on the customer that revealed several red flags, AmerisourceBergen attempted to stop servicing the customer. Instead of being supported in this decision, the U.S. District Court for the District of Alaska issued an injunction ordering the company to continue supplying the pharmacy with opioid-based medications.

Unfortunately, former leaders at the DEA have taken no accountability for their actions and inactions. Instead, they have pointed fingers. In fact, the head of the Office of Diversion Control for the DEA from 2006-15, who oversaw and signed off on triple-digit percentage increases in DEA quotas for prescription opioid manufacturing, aligned with the media and positioned himself as a whistleblower.

Perhaps unsurprisingly, this same administrator began consulting with private law firms that were planning legal strategies against the industry he used to regulate.

Today, a litany of trial lawyers with billions of dollars of contingency fees at stake have encouraged municipalities across the nation to pursue litigation against pharmaceutical distributors. These attorneys aggressively pursued the release of the ARCOS data to prove their case in the court of public opinion and then ignored the fact that the only entity that had access to the data as the crisis grew was the government agency that was supposed to use it to enforce the law. 

It would be logical to guess that the reason these plaintiff firms are willing to gloss over the facts comes down to their own pockets. An illustrative example is the settlement in the Oklahoma opioid litigation case, when a pharmaceutical manufacturer agreed to pay $270 million. Approximately $60 million of that went to private attorneys.

The human toll of the opioid crisis is staggering and undeniable. I harbor no desire to point fingers — the genesis of this crisis is complex and more than likely involves both well-intentioned and nefarious actors spanning the public and private sectors that operated in highly obtuse environments with limited guidance. But complexity and nuance aren’t well served by the chum of bureaucratic incompetence and the hunger for dollars of plaintiff attorneys seeking a payday.

 

Gabe Weissman is senior vice president for communications at AmerisourceBergen, a wholesale pharmaceutical distributor.

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