New York’s sweeping lawsuit is the first opioid case in which a jury rather than a judge will decide the outcome.
When New York’s sprawling opioid trial — the first in the country that targets the entire opioid supply chain — begins with opening arguments in Central Islip on Long Island on Tuesday, it will not be held in a courthouse.
There was not a courtroom large enough to fit the eight defendants, including drugmakers who manufacture opioids, distributors that supply the pills, their subsidiaries and their armies of lawyers. The judge will hear the case in an auditorium at a local college.
The trial, in which Nassau and Suffolk Counties have joined the New York State attorney general, marks the first opioid case where a jury rather than a judge will decide the outcome. Initially, the sweeping case also targeted several pharmacy chains that dispensed opioids, but in the days leading up to the trial, all were excised from the case following a flurry of settlements with New York, the details of which have not yet been finalized.
Still, the proceedings will offer rare illumination of the machinery that helped power a drug scourge that over the past two decades has killed more than 800,000 people nationwide via overdoses of prescription and street opioids, according to federal data.
Six jurors and six alternates will hear testimony inside the auditorium at Touro College’s Jacob D. Fuchsberg Law Center from what is likely to be hundreds of witnesses, as prosecutors seek to prove that the industry operated as a network of profiteers who cashed in on increasing the pills flooding into New York while ignoring the human cost.
“What is significant about a jury trial is it’s an opportunity for members of the community that have been so affected by the opioid epidemic to be able to hear the evidence, and rule for themselves as to whether the defendants should be held accountable,” said David Nachman, who until recently was the lead prosecutor for New York’s case. “I think that is significant in not only legal but moral and social terms.”
Conspicuously absent from the makeshift courtroom will be the defendant most associated by the public as culpable for the two-decade-long opioid epidemic — Purdue Pharma, the maker of OxyContin, which is owned by members of the billionaire Sackler family.
Purdue was initially named in the case, as were some individual Sacklers. But nearly two years ago, as Purdue faced thousands of opioid-related lawsuits, it filed for bankruptcy, a process that has paused cases against it and the Sacklers.
In addition, over the weekend, Johnson & Johnson, the parent company of Janssen Pharmaceutical Companies, which had been a defendant the case, agreed to pay more than $230 million to settle with New York. The settlement ensures the company stays out of the opioid business in the United States permanently.
Johnson & Johnson, which says its drugs accounted for less than 1 percent of opioid prescriptions, had been a major supplier of the ingredients that make opioids to other manufacturers until 2016. It will also no longer stand trial.
The New York complaint also had named as defendants four major pharmacy chains: Walmart, CVS, Rite Aid and Walgreens. But in the weeks leading up to the trial, all but Walgreens were severed from the case.
A spokesman for CVS confirmed that the pharmacy had reached a settlement agreement with Nassau and Suffolk Counties, the terms of which must be approved by the county legislatures before any financial payout is determined.
Rite Aid, Walmart and Walgreens did not respond to emails requesting comment. Lawyers for the counties declined to comment on the details of the pharmacies’ severance.
Even without the companies that have settled, a broad swath of the opioid industry is still set to take the stand, including manufacturers of generic versions of drugs, like Teva Pharmaceutical Industries Ltd. and Allergan Inc., as well as massive suppliers of the pills such as Cardinal Health and McKesson Corp.
The far-reaching nature of the case is perhaps both its strength and weakness: Plaintiffs’ lawyers say that the trial, which may last six months, will illustrate much of the scope of an industry that purports to treat pain patients but also profits from addiction. But that industry is overseen by federal agencies, and the defendants contend that they were producing, distributing and dispensing prescription drugs that were approved.
And the sheer volume of testimony may overwhelm jurors. The squads of lawyers defending the companies are expected to blame not only each other but also those not in the room, like Purdue and the Sacklers, in a tactic known as the empty chair defense.
More than 3,000 lawsuits have been filed across the country against entities involved in the supply of opioids. In New York, opioids in both prescribed and street forms killed 3,000 people in 2018, according to data from the New York State Department of Health.
Two opioid trials are currently ongoing: a state trial in California against several manufacturers, and a federal trial in West Virginia against a group of distributors.
The strategy of passing the blame can be effective but could fall flat in the New York case, said Elizabeth Burch, a professor at University of Georgia School of Law who writes about complex litigation.
“There has been a ton of finger-pointing, ‘It’s not us, it’s this other company over there that is the problem,’” Dr. Burch said.
In New York, “If you have the whole chain of distribution in front of the jurors at once,” she said, “if the defendants are pointing fingers at one another, that does some of the plaintiffs’ work for them.”
Prosecutors had initially made numerous legal claims, such as negligence and fraud, but state Supreme Court Justice Jerry Garguilo winnowed them down to just one for this current trial: that the defendants had fostered the opioid crisis and in so doing created a public nuisance — and are thus financially responsible for fixing it.
The jurors will not assess damages; they will be asked to determine only which, if any, of the defendants are liable. If New York prevails, a second trial will determine how much is owed. An analysis by the Fiscal Policy Institute, a nonpartisan policy research group, found that the opioid crisis had cost Long Island $8.2 billion in economic damage in 2017, the last year for which it had conducted research.
Any money recovered will not go to people harmed by the opioid crisis, but rather toward abatement — mitigating harm and preventing future crises with things like education and addiction treatment programs.
Plaintiffs in the New York case argue that the defendants are also responsible for much of the destruction wrought by drugs like heroin and fentanyl, to which they say opioids serve as a gateway.
The defendants say such claims are overly broad and that their culpability cannot be proven, according to court documents.
Broadly speaking, they contend that the pills were manufactured or provided legally. Any oversupply or abuse, they say, is the fault of those charged with monitoring opioid consumption — doctors, but also the federal Drug Enforcement Administration and even New York State and Suffolk and Nassau Counties themselves, which oversee things like the licensing of pharmacies and whose police departments tackle illegal drug use.
“The D.E.A. has always been responsible for setting the supply of opioid medications through its use of annual quotas, and demand is driven by the licensed physicians who write prescriptions based on their independent medical judgment,” the drug distributor AmerisourceBergen, a defendant, said in a statement. It added that the company “had no role in working with the D.E.A., to set quotas, nor did we interact with physicians or patients to recommend particular medications.”
Under Justice Garguilo’s instructions, the only burden for prosecutors in the New York case will be to convince a jury that all links in the distribution chain share in the blame.
“Sure, some of them make the pills, and some of them put them in trucks and send them out, and some of them put them on shelves, but they all have the same goal and all have the same tactics, and profit from each one of the falsehoods they tell,” said Jayne Conroy of Simmons Hanly Conroy, a lawyer for Suffolk County. “That’s the great secret about the case: It’s a whole bunch of defendants but not a complicated story.”
“The beauty of the law is you don’t just have to have one person who was responsible — every single one of these companies were a cause of this epidemic,” she said. “There is blame everywhere.”
Jan Hoffman contributed reporting.
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