Opioid Trial: How Baltimore and Opioid Companies Plan to Make Their Case

Baltimore’s lawsuit against opioid distributors is “the largest and most important case in the history of this city,” and offers a chance to hold pharmaceutical companies accountable for the hundreds of millions of painkillers they shipped to the metro area and the addiction and overdose crisis that followed, a city attorney told the jury Wednesday.

Attorney Bill Carmody’s arguments were part of Wednesday’s opening statements, which outlined how the city and the opioid companies will approach the planned eight-week trial.

“They have destroyed the public health and safety of this city,” Carmody said during his nearly two-hour opening statement. “They have taken advantage of this city.”

Drug distributors McKesson and AmerisourceBergen, among the nation’s largest companies, say they are being unfairly blamed for a crisis fueled by illegal drugs such as heroin and fentanyl.

“We are going to defend ourselves vigorously because we did not cause the opioid epidemic in Baltimore and we are not going to allow the plaintiffs to impose all of this societal harm on us,” said Robert Nicholas, one of AmerisourceBergen’s attorneys.

Baltimore’s overdose death rate is nearly twice as high as any other major U.S. city, The Baltimore Banner and The New York Times reported earlier this year in an investigation that the city highlighted in its opening statement.

Here are some of the most astonishing claims from the city’s opening statement, along with the pharmaceutical companies’ responses:

At their peak, opioid companies supplied 320 million painkillers to the Baltimore area

Together, AmerisourceBergen and McKesson supplied approximately 60% of the half billion opioids that flooded the city and region of Baltimore during the prescription drug crisis.

The 320 million pills they sold here would be enough to give everyone in a packed Camden Yards an opioid – 7,000 times over.

The pills kept flowing even as the prescription opioid crisis became a heroin crisis and then a fentanyl crisis in the mid-2010s. Experts say 80% of people who use heroin started out using prescription opioids.

The distributors say opioids are just a fraction of their business, acting as middlemen between drugmakers and the hospitals and pharmacies that need all sorts of drugs.

Moreover, the companies’ lawyers said, demand for opioids was driven by prescriptions, not distributors. As the medical community embraced opioids as a solution to chronic pain in the 1990s and early 2000s — a movement encouraged by pharmaceutical companies like Purdue Pharma — doctors began prescribing more opioids, and the federal Drug Enforcement Administration raised annual production limits to meet demand.

“We should not question the medical decisions of these doctors,” Nicholas said.

It’s true that the push for more opioids was widespread during that time. In Maryland, for example, lawmakers created a State Advisory Council on Pain Management that recommended removing barriers to pain treatment in 2004.

Drug distributors neglected their responsibility to watch for suspicious orders

Prescribers, pharmacies, drug manufacturers and distributors must register with the DEA to sell controlled substances. As part of the deal, they must also be on the lookout for suspicious orders or signs that the drugs they sell are being diverted for illegal use. That “closed loop” system is supposed to keep controlled substances like opioids out of the wrong hands and off the streets.

The city alleges that McKesson and AmerisourceBergen ignored their obligations in their quest for higher sales. Both companies failed to report a single suspicious order in Baltimore for years, even as their sales here skyrocketed.

In an email that Carmody called a “smoking gun,” a member of McKesson’s regulatory staff told other employees not to put the word “suspect” on paper. The companies also told customers their thresholds for certain drugs, making it easy for pharmacies to skirt the limits on opioid orders.

However, the distributors say they followed their legal requirements and reported all controlled substance orders to the DEA in real time. It was up to the DEA to investigate further. AmerisourceBergen’s suspicious order monitoring system was hailed as an industry leader in 2007, Nicholas said.

“Nobody was hiding anything,” said McKesson’s attorney Andrew Stanner.

A pharmacy in Dundalk was one of the largest buyers of oxycodone for McKesson

The city is focusing on sales by distributors to pharmacies during this trial, because that is where most opioid abuse occurs, Carmody told the jury.

Drug City was McKesson’s No. 1 buyer of oxycodone nationwide among independent pharmacies, he said. The Dundalk pharmacy received 3 million opioid pills in one year, despite operating in a community of about 65,000 people.

“Of course they knew what was going on,” Carmody said.

McKesson knew of reports that drug dealers were selling pills in the pharmacy parking lot, he said. But the company didn’t stop the sales there; instead, it congratulated the pharmacy owner.

Stanner told the jury that Drug City is a typical pharmacy selling balloons and greeting cards. That’s what McKesson’s salespeople saw when they visited the store, he said, not the chaotic drug market the city claims.

Drug City and its former owner reached a $900,000 settlement with the DEA in 2016 for providing controlled substances to people the company “should have known were diverting the drugs.”

Company officials joked about the opioid crisis in internal emails

Internally, Amerisource Bergen regulators shared parody songs about the opioid crisis, referring to oxycodone as “hillbilly heroin.” Another song, set to the tune of Jimmy Buffett’s “Margaritaville,” poked fun at how easy it was to get opioids in Florida.

In an email, an AmerisourceBergen corporate investigator shared a humorous example of a box of Kellogg’s cereal with the subject line “Oxycontin for Kids.”

Nicholas told the jury these were “some embarrassing emails from many years ago” that city attorneys pulled from hundreds of thousands of pages of documents handed over during the trial.

Fentanyl filled Baltimore’s opioid void, leading to the highest overdose death rate in the country

As The Baltimore Banner reported in May, Baltimore’s overdose death rate is staggering, the highest of any major U.S. city.

City lawyers say the situation spiraled out of control when easily available opioid pills disappeared during a DEA crackdown in 2012. Without prescription opioids, people who had become dependent on the drugs turned to cheaper street drugs, such as heroin. Eventually, the powerful synthetic opioid fentanyl took over the drug market, driving up overdose deaths.

Although Baltimore had a known heroin problem for decades before opioids became more popular, the city had successfully “knocked back” the problem and reduced the number of opioid deaths in the early 2000s, Carmody said. The influx of prescription opioids brought the problem back to unprecedented levels.

Attorneys for McKesson and AmerisourceBergen did not dispute that there is a serious opioid crisis in Baltimore. But they pointed to other sources, such as drug cartels and street gangs, and the diversion of the “medicine cabinet” that occurred when prescription opioids were in abundance.

“What they’re really saying is that we should be responsible for the diversion that occurred after the opioids were no longer in our possession,” Nicholas said.

Testimony in the trial begins Thursday morning.

Correction: This article has been updated to correct attribution of an email that mocked opioid use.