Judge: Drugmakers Aren’t Drug Dealers

Knoxville News Sentinel USA TODAY NETWORK - TENNESSEE

JACKSBORO – Sure, Big Pharma pushes deadly, addictive drugs onto Tennessee’s streets, but that doesn’t make them drug dealers, an East Tennessee judge says. Eighth Judicial District Circuit Court Judge John D. McAfee is refusing a move by East Tennessee prosecutors to label the manufacturers of opiates such as OxyContin as drug dealers.

Fourteen prosecutors representing 47 counties in Middle and East Tennessee last year filed lawsuits against opioid makers, including OxyContin maker Purdue Pharma, and distributors under the Tennessee Drug Dealer Liability Act.

It was a new twist on that law — which allows “innocent third parties” to sue drug dealers for damages — and a new front on the nationwide legal battle to try to hold Big Pharma financially accountable for the deadly epidemic its opioid drugs have caused.

But McAfee has shot it down — without even weighing the lawsuit’s allegations Big Pharma not only sold a deadly, addictive drug but lied about just how addictive it was, pushed governments and citizens to demand the right to it for uses it was never intended, and deceived the FDA.

Judge: Big Pharma not drug dealers

McAfee said in his ruling there was no need for debate. Drugmakers aren’t drug dealers, the judge said.

“The opioid medications the manufacturer defendants produce are legal under federal and state law and are FDA approved,” McAfee wrote. “As a matter of Tennessee law, it is legal for the manufacturer defendants to make FDA-approved medications and sell them to DEA-registered distributors.

“The court disagrees with the plaintiffs assertion that because of (Big Pharma) business and marketing practices, the otherwise legal production and distribution of opioid medications becomes illegal by over producing and by the subsequent criminal conduct of other unrelated actors,” he continued.

“Pharmaceutical companies that manufacture FDA-approved opioid medications and sell to DEA-licensed distributors are not ‘drug dealers’ as contemplated by the (law).”

With that, McAfee dismissed Big Pharma opioid makers as defendants in the lawsuit filed in Campbell County Circuit Court by prosecutors Charme Allen, Dave Clark, Jared Effler, Russell Johnson and Stephen Crump.

Their districts range from Allen’s Knox County to Crump’s Bradley County. But the lawsuit was filed in Campbell County because it is one of the hardest hit by the opioid epidemic, and two of the “innocent third parties” cited in their lawsuit were opioid-addicted babies born there.

Legal money train?

Similar lawsuits by other prosecutors have been filed in three Upper East Tennessee jurisdictions, ranging from Greene County to Sullivan County. Available court records show the Sullivan County case has been transferred — at the behest of Big Pharma — to federal court, where winning is tougher and a global settlement already is in the works nationwide. The status of the other lawsuits was not immediately available.

Attorneys with Nashville law firm Branstetter, Stranch and Jennings, who convinced the prosecutors to give the Drug Dealer Relief Liability lawsuit a try, did not respond to a request for comment.

The DAs opted last year to take action against Big Pharma after accusing the Tennessee attorney general’s office of inaction. They noted the state attorney general’s office — under current Attorney General Herbert Slatery’s predecessor — was part of a 2007 settlement with Purdue Pharma, the manufacturer of widely abused opioid OxyContin.

In that case, Tennessee received roughly $720,000 of the $19.5 million settlement. Of that money, $400,000 went to cover attorneys’ fees for the attorney general, according to the district attorneys. The DAs also pointed out the attorney general’s office had authority under that settlement to force Big Pharma and its partners to reveal when communities received shipments of more opiates than population but did nothing. But earlier this year Slatery pulled a surprise move — filing a lawsuit in Knox County Circuit Court against Purdue that uses as evidence against the drugmaker internal records his office was able to obtain because of that 2007 settlement. That lawsuit is pending.

Several East Tennessee county governments also are suing Big Pharma via using racketeering laws and federal court, where U.S. District Judge Dan Aaron Polster of Ohio has already been tapped to try to marshal what’s known as a multidistrict litigation, or MDL.

All these lawsuits — whether by DAs, governments or attorneys general — seek cash. Polster is pushing for a global settlement that would allow Big Pharma to write one big check for damages — to be divided up among the dozens of jurisdictions on board that legal train.

Tennessee logs more opiate prescriptions per capita than any state in the nation except West Virginia.

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