A jury on Tuesday ruled in favor of the City of Baltimore, finding that two drug distribution companies fueled the opioid epidemic in the city by sending hundreds of millions of painkillers here, and awarded $274 million in damages.
By ruling for the city, the jury determined that the city’s opioid problem was depriving residents of their right to public health and safety. Jurors found that the companies, McKesson and AmerisourceBergen, unreasonably shipped huge sums of painkillers to the Baltimore area, substantially contributing to the public nuisance.
Together, the two drug distributors accounted for 60% of the prescription opioid market in Baltimore for about a decade, city lawyers said. Between 2006 and 2019, McKesson and AmerisourceBergen sent 320 million oxycodone pills here.
By pumping pills into the area, the city contends, the companies helped to hook a new generation on opioids; and when their prescriptions ran out, they turned to more potent heroin and fentanyl, leading people to die at staggering rates.
Baltimore’s win at trial represents a gamble paying off. Years ago, the city opted out of a global settlement between a group of opioid manufacturers and distributors and a host of states and municipalities around the country, opting to pursue its own cases against those companies with hopes of securing larger payouts. Before the trial against McKesson and AmerisourceBergen, the city settled with a range of manufacturers, distributors and pharmacies for more than $402.5 million.
A spokesman for the city said it could still not disclose the details of its settlement with opioid manufacturer Johnson & Johnson.
Baltimore could still earn more money from its case against McKesson and AmerisourceBergen. Circuit Judge Lawrence P. Fletcher-Hill scheduled an “abatement” trial in December. That proceeding determines how much the companies must pay to help Baltimore mitigate the ongoing crisis a jury has now ruled that they fueled.
The city will ask for up to $11 billion in abatement.
“Abatement is a special remedy which applies when [a] plaintiff proves a cause of action for nuisance,” Carl W. Tobias, Williams Chair in Law at the University of Richmond School of Law, said in an email. “The amount awarded to abate the nuisance could make the ultimate award substantially larger.”
After deliberating less than two days, the jury ruled McKesson and AmerisourceBergen accounted for 70% and 27% of the public nuisance in Baltimore, respectively, attributing just 3% to other actors. That means the damages the companies are on the hook for are closer to $266 million combined.
In a statement, Mayor Brandon Scott noted that the verdict brings the city’s winnings from opioid litigation to at least $668.5 million, “a game-changing figure that will reshape our ability to confront this crisis in every part of our city.”
“The opioid overdose epidemic has taken a toll on every community in this country, but in Baltimore, it has touched every resident in some way and devastated whole families and whole neighborhoods,” said Scott, a Democrat. “Today, a jury agreed that the outsized impact on our city was a direct result of the actions of big pharma. I am grateful to the jury for their careful deliberation, which has validated our claim against these bad actors, and sent a message that indifference for the lives of our residents will not be tolerated.”
At trial, lawyers from McKesson and AmerisourceBergen persistently downplayed the role of prescription painkillers in the opioid epidemic, saying instead that heroin and fentanyl were responsible for the addiction scourge. They blamed cartels, gangs and street crews for flooding city streets with illicit drugs.
The defense attorneys also said that doctors were responsible for increases in opioid shipments to Baltimore because the companies only shipped drugs to meet demand driven by prescriptions. They said the companies only sold to pharmacies licensed by the Drug Enforcement Administration and the state of Maryland.
But city attorneys countered that the companies neglected their responsibilities under the federal Controlled Substances Act to catch and report suspicious orders of opioids. They said McKesson and AmerisourceBergen intentionally overlooked warning signs that the drugs they sold were ending up on the streets.
A spokesperson for McKesson said the company “continues to maintain and enhance strong programs” designed to detect when its opioids end up on the streets and to report such circumstances when they arise.
“We respect but disagree with the jury’s verdict, which fundamentally misunderstands McKesson’s limited role as a pharmaceutical distributor,” the spokesperson said. “We believe this decision does not adequately take into account the compelling facts and evidence presented at trial. We are prepared to file motions challenging the verdict and, if those are denied, we will file an appeal.”
Mike Iorfino, a spokesman for AmerisourceBergen, which is now called Cencora, said in a statement the company was “disappointed with the jury’s verdict, which we believe does not reflect the facts of the case.”
“Cencora distributes FDA-approved medications to licensed and registered health care providers and today’s verdict further frays the legal and ethical tightrope the company is being asked to walk between providing access to necessary medications and acting to prevent diversion of controlled substances,” Iorfino said. “Our teams are analyzing the ruling and evaluating all options moving forward, including appealing today’s verdict.”
The trial, which spanned more than six weeks, featured dozens of witnesses, hours of videotaped depositions and hundreds of documents, putting a magnifying glass to the distributors’ business with several pharmacies throughout the Baltimore area. In some cases, the companies continued to send huge amounts of painkillers despite what a former DEA agent described as glaring “red flags,” such as large quantities of prescriptions called in from pain clinics and opioids making up unusually high proportions of pharmacies’ business.
McKesson sent more oxycodone to Drug City Pharmacy in Dundalk than any other independent pharmacy nationwide. The owner told McKesson at one point that he was employing off-duty police officers to catch people selling pills in the parking lot. McKesson nonetheless increased its supply of oxycodone. At the peak, McKesson was sending 273,000 oxycodone pills to the pharmacy each month, or more than 3 million annually.
“This is just so much oxycodone,” former DEA agent Ruth Carter testified. “There’s no explanation I can think of.”
City lawyers called a range of Baltimore employees to testify to the everyday toll of the epidemic.
A fire official said the department responds to up to 6,000 opioid overdoses a year. A leader in the Department of Public Works Solid Waste Bureau testified to waste-laden blocks in areas where people were known to use opioids. A health department employee described the agency’s efforts to combat the crisis, such as distributing clean needles to users.
The city’s legal team hired an economist who estimated Baltimore spent at least $197 million over the last 13 years — an average of more than $15 million a year — combating the opioid crisis via its police, fire and health departments and the Mayor’s Office for Homeless Services. He projected the city would spend $73 million more from 2024 to 2029.
During the trial, Fletcher-Hill ruled the jury could not award punitive damages against McKesson and AmerisourceBergen, dramatically reducing the pull of money available. Punitive damages, or fines designed to punish defendants, can number up to 10 times more than compensatory damages, or costs defendants seek reimbursement for through litigation.
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