AG Ferguson files lawsuit against opioid distributors

Attorney General Bob Ferguson announced this week, flanked by Quinault Indian Nation President Fawn Sharp, that he filed a lawsuit against the three largest distributors of prescription opioids in Washington state, arguing that they failed to alert law enforcement of suspicious opioid orders, and illegally shipped those orders into Washington for years, contributing to the illegal supply of opioids and fueling the state’s opioid epidemic.

Grays Harbor and Pacific County are among counties within the state cited for having more prescriptions than population.

Ferguson’s lawsuit, filed in King County Superior Court, asserts that McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp. made billions of dollars shipping oxycodone, fentanyl, hydrocodone and other prescription opioids into the state. Ferguson says that the companies knew or should have known those drugs were likely to end up in the hands of drug dealers and addicts.

Opioid distributors are legally required to monitor the size and frequency of prescription opioid orders to identify suspicious orders that could be diverted into the illegal drug market. Distributors are required to stop these suspicious shipments and report them to the federal Drug Enforcement Agency (DEA).

Ferguson noted that the companies have faced  repeated actions from the DEA for failing to stop and report suspicious opioid shipments, paying hundreds of millions in fines for their failure to follow the rules.

“We are woefully under-resourced when it comes to treatment. The people who are responsible for this epidemic should being paying for it,” Ferguson said. “We are going to hold these companies accountable and get more money into our communities for treatment.”

According to his report, Ferguson says that between 2006 and 2014, McKesson, Cardinal Health and AmerisourceBergen supplied more than 2 billion opioid pills to Washington.

In 2014, for example, McKesson, Cardinal Health and AmerisourceBergen shipped enough opioids to Pend Orielle County to supply every single resident with dozens of pills. In 2009, McKesson alone supplied enough for dozens of pills for every resident of the county. The specific shipment numbers are currently under seal.

The DEA requires distributors to monitor orders, looking for specific factors that can identify suspicious shipments. Those factors include increases in quantity and frequency, as well as changes in ordering patterns.

When distributors identify suspicious orders, they are required to stop the shipment and notify the DEA. Ferguson asserts that, even when their internal monitoring should have flagged suspicious orders, the companies shipped them anyway without notifying the DEA.

Based on shipping data, a conservative calculation suggests these companies may have shipped more than 250,000 suspicious orders into Washington state between 2006 and 2014. A less conservative calculation puts that number more than 3 ½ times that high, at nearly a million.

McKesson, Cardinal Health and AmerisourceBergen have faced multiple actions by the DEA and others for failing to monitor and stop suspicious orders. McKesson has faced more than $160 million in fines, with the DEA determining that the company filled “hundreds of suspicious orders placed by pharmacies participating in illicit internet schemes, but failed to report the orders to DEA.”

Cardinal has been fined five times for a total of nearly $100 million since 2008, while DEA suspended AmerisourceBergen’s distributor licenses in 2007 for failing to adequately monitor and report suspicious orders.

The DEA noted that, between June 2008 and May 2013, one McKesson distribution facility “processed more than 1.6 million orders for controlled substances . . . , but reported just 16 orders as suspicious.”

In 2015, there were eight counties with more prescriptions than population, led by Asotin, with nearly 1 ½ prescriptions per person. The other counties were Clallam, Grays Harbor, Columbia, Garfield, Pend Orielle, Lewis and Benton.

In 2008, there were 16 counties with more prescriptions than people.

According to the report, Grays Harbor featured 119.7 prescriptions per 100 people, lower than the 131.7 prescriptions per 100 in 2008. Pacific County showed 136.2 prescriptions per 100 people in 2008.

Ferguson says that between 2006 and 2017, opioid overdoses killed more than 8,000 Washingtonians, more than were killed by car accidents or firearms. The majority of drug overdose deaths in Washington state involve opioids and between 2009 and 2014, the rate of opioid-related hospital and clinic stays increased by more than 60 percent in Washington state.

Ferguson accuses McKesson, Cardinal Health and AmerisourceBergen of violating the state Consumer Protection Act for filling thousands of suspicious orders in Washington state without adequately identifying them or reporting them.

Ferguson’s lawsuit seeks civil penalties and damages from the companies. He also asks the court to order the distributors to give up the profits they made in Washington as a result of their illegal conduct.

Sales of opioids are worth billions every year nationwide, and Washington’s portion is expected to be in the millions.

The surrendered profits would be used to remediate the effects of the opioid epidemic, possibly funding treatment, education and more.

In September of 2017, Ferguson sued Purdue Pharma, accusing the OxyContin maker of fueling the state’s opioid epidemic through deceptive marketing and convincing doctors and the public that their drugs are effective for treating chronic pain and have a low risk of addiction. In April of 2018, a King County judge denied Purdue’s attempt to dismiss Ferguson’s lawsuit.

About 10 states and a large number of cities have sued at least one of the distributors. The companies have said they are taking steps to help address the crisis and noted that they fulfill prescription orders placed by properly licensed health care providers.

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