Brittany Horn - Delaware News Journal
More than three years since Delaware first sued Big Pharma, the state – alongside a bipartisan group of about 12 other attorneys – have reached a $26 billion settlement agreement with some companies they say caused and continued America's opioid epidemic.
This settlement, of which Delaware expects to see $100 million, includes the distributor Johnson & Johnson, as well as three major medical distributors – Cardinal Health, McKesson and AmerisourceBergen.
The money, to be distributed through a commission recently created in Delaware for situations like this, will go toward the treatment and prevention of opioid addiction here in Delaware. Officials said the more local "subdivisions" or cities and municipalities which have also sued Big Pharma, like Dover and New Castle County, that choose to sign onto this agreement, the more money Delaware can expect to see in its payout.
This is critically important, according to the national legal team that helped broker this deal, as the deal could fall apart if not enough plaintiffs in the case – including thousands of communities across the country – sign onto the agreement.
While the companies are not admitting wrongdoing or fault as part of the settlement, the agreement will continue Johnson & Johnson's inability to manufacture or promote opioids. It will also change and increase accountability of distributors and their role in the opioid crisis to prevent small pharmacies from receiving the influx of pills that far outnumbered the residents in small towns across America.
Delaware, too, continues to disperse high rates of opioids. The state still ranks No. 1 nationally for the number of high-dose and long-acting opioids prescribed per capita as of February.
"No amount of money that we can bring in to Delaware is going to take away the grief that these families have suffered and the loss of their loved ones," said Delaware Attorney General Kathy Jennings.
But, she said, this figure – an increase of about $4 billion from the first settlement figure thrown around in 2019 – at least begins to make a dent in abating the crisis that is ongoing today.
Johnson & Johnson said in a statement that its marketing and promotion of opioids "were appropriate and responsible" but stressed that this settlement will support states and localities to "make meaningful progress in addressing the opioid crisis in the United States."
The three distributors in a joint statement said they "strongly dispute the allegations made in these lawsuits" but believe the settlement provides important steps toward resolving the opioid epidemic, which the companies remain "deeply concerned" about, especially the impact the crisis is having on individuals, families and communities.
"The years of legal actions leading up to this point have shown time and time again that pharmaceutical distributors must walk a legal and ethical tightrope between providing access to necessary medications and acting to prevent diversion of controlled substances," AmerisourceBergen said in a separate statement.
This agreement does not include pharmaceutical giants like Purdue Pharma or the company's owners, the Sackler family – both of whom who have been sued by Delaware's Department of Justice.
In a separate case, Delaware recently joined other attorneys general in filing formal objections to a Purdue bankruptcy plan that would grant a lifetime legal shield to the Sackler family – and the billions they made by producing opioids through Purdue Pharma.
The state Department of Justice, earlier this month, did not join other states in a settlement with Purdue or the Sacklers. In a written statement, Attorney General Kathy Jennings called Purdue's conduct "among the modern era’s most egregious examples of corporate profit-chasing taking precedence over people."
"It’s the deadliest drug dealing in our nation’s history, period," Jennings said, pointing to Delaware's fatal overdose rate ranking as the second-highest in America for two years running.
The decision, however, does not prevent Delaware from receiving its share of a court-approved settlement, Jennings said.
Since the first local fillings of these lawsuits in 2018, Delaware's struggle with addiction has not improved. The state reported 447 overdose deaths statewide last year – up from 431 in 2019.
Local public health experts point to the rise in fentanyl as a main driver of overdose deaths because it is both stronger than heroin and harder to reverse with the overdose medication naloxone. The isolation from the COVID-19 pandemic also further exacerbated
Last year, fentanyl was found as a contributor in 372 of the state’s overdose deaths, according to a report from the state Division of Forensic Science. In contrast, heroin was found in 94 of those deaths, and cocaine was present in 152.
The state has long argued that, in addition to the hundreds of lives lost each year, that Delaware loses about $100 million annually in resources for health care, criminal justice, social services and education — all of which have been impacted by the opioid epidemic, according to a lawsuit filed by the DOJ.
Recovering those dollars has been a portion of the "request for relief" in the state's filing.
Delaware will see this settlement payout over the course of 17 years, with the bulk of the payments coming in the first three – two of which are expected in the first year of the agreement – according to the state Department of Justice.
The state in February reached a multistate settlement with McKinsey & Company, one of the world's largest consulting firms that played a role in helping opioid companies like OxyContin maker Purdue Pharma promote and sell its drugs.
Of the $573 million settlement, Delaware was allocated $2.58 million that will now be spent at the discretion of a statewide commission formed with the intention of addressing the harm caused by the opioid crisis in Delaware. Already, the state has received that money, prosecutors said.
Additionally, the state is working with new money from the Opioid Impact Fee, which bills pharmaceutical companies selling opioids in Delaware. Last year, the state collected about $2 million in taxes imposed on these drugs.
That money, according to the state, was going to target the prevention and treatment of opioid addiction – a requirement of the law which governs the use of the opioid impact fee.
The state was allocating this first batch of dollars to stabilization centers for people in need during off-hours and weekends, transporting and paying for transitional housing, administrative expenses associated with collecting this fee, and purchasing more of the overdose-reversing drug, naloxone.