By Nate Raymond
A group of state attorneys general unveiled on Wednesday a landmark $26 billion settlement with large drug companies for allegedly fueling the deadly nationwide opioid epidemic, but some states were cool on the agreement.
Under the settlement proposal, the three largest U.S. drug distributors, McKesson Corp, Cardinal Health Inc and AmerisourceBergen Corp, are expected to pay a combined $21 billion, while drugmaker Johnson & Johnson would pay $5 billion.
“There’s not enough money in the world frankly to address the pain and suffering,” said Connecticut Attorney General William Tong, adding that the money will “help where help is needed.
The deal was the second-largest cash settlement ever, trailing only the $246 billion tobacco agreement in 1998.
Attorneys general from 15 states were involved in negotiating the deal.
Settlement money from the distributors will be paid out over 18 years. J&J will pay over nine years, with up to $3.7 billion paid during the first three years.
The money is expected to be used on addiction treatment, family support, education and other social programs.
“This settlement will directly support state and local efforts to make meaningful progress in addressing the opioid crisis,” said Michael Ullmann, Johnson & Johnson’s general counsel.
The distributors were accused of lax controls that allowed massive amounts of addictive painkillers to be diverted into illegal channels, devastating communities, while J&J was accused of downplaying the addiction risk in its opioid marketing.
The companies have denied the allegations.
The settlement also calls for the creation of an independent clearinghouse to provide the distributors and state regulators aggregated data about drug shipments, which negotiators hope will help prevent abuse.
More than 3,000 lawsuits related to the health crisis, mostly by state and local governments, have been filed. Negotiators have struggled to find a structure that would garner enough local government support to assure the defendants a deal will put an end to nearly all litigation.
As a result, the ultimate settlement amount depends on the extent states sign up for the deal and confirm their cities and counties are on board.
“The expectation is north of 40 and well north of 40 will sign on,” said North Carolina Attorney General Josh Stein.
The opioid crisis has been blamed for hundreds of thousands of U.S. overdose deaths since 1999, but has hit some regions much harder than others, creating divisions among governments when it comes to considering the settlement.
States will have 30 days to evaluate the agreement.
“States that don’t sign on are being irresponsible,” said Louisiana Attorney General Jeff Landry. “We don’t want perfect to be the enemy of the good.”
Around $2.1 billion will be deducted from the settlement for attorneys fees and legal costs.
Washington state’s attorney general, Bob Ferguson, said he would not join the deal. “The settlement is, to be blunt, not nearly good enough for Washington.”
That state’s trial against the drug distributors begins on Sept. 7 and a January trial is set against J&J.
To receive the full payout, the agreement needs support from at least 48 states, 98% of litigating local governments and 97% of the jurisdictions that have yet to sue.
Electing to participate only guarantees a state some of the money.
The settlement provides a base payout of up to $12.12 billion if all states agreed to the deal, and another $10.7 billion in incentive payments based on various factors concerning participation by localities.
“Everyone has a common interest to get maximum participation to get a maximum amount of funds for abatement nationally,” said Joe Rice, a lead lawyer for the local governments.
Local governments have up to 120 days to join.
About half of the states have in anticipation of the settlement passed legislation or signed agreements with their localities governing how settlement money will be distributed, according to Christine Minhee, who runs an opioid litigation watchdog project supported by an Open Society Foundations Soros Justice Fellowship.
Legislation does not guarantee success. In Indiana, cities and counties representing more than half of the state’s population have opted out after a law limited their cut to 15%.
Hard-hit West Virginia had already signaled it will not participate in the settlement. Local governments in the state are pursuing a case that is on trial against distributors.
“As of now, West Virginia is very likely a ‘no’ on these agreements,” state Attorney General Patrick Morrisey said.
New Hampshire, which was deeply affected by the epidemic, also has not decided whether to join the deal, said James Boffetti, an associate state attorney general.
Meanwhile, the crisis has shown no sign of letting up. The U.S. Centers for Disease Control and Prevention last week said provisional data showed that 2020 was a record year for overall drug overdose deaths with 93,331, up 29% from a year earlier.