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South Florida and Chicago Law Firms Ally in Class Action Against Drug Manufacturers

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Two law firms have combined resources to file a putative class action lawsuit accusing several big pharmaceutical companies of misconduct in Florida.

In a suit filed Tuesday in the U.S. District Court of Florida, named plaintiff and Florida resident Michael Konig lists several large corporations, including Connecticut-based Purdue Pharma Inc., Johnson & Johnson and Janssen Pharmaceuticals Inc. as defendants. He accuses them of misleading patients, doctors, insurers and others regarding the addictive nature of opioid medications in order to turn a profit.

The suit argues that the opioid epidemic has caused severe health consequences on a mass scale, in turn prompting the rates of insurance premiums, deductibles and co-pays to rise across the health insurance market.

According to Ashley Keller, founding partner at Chicago litigation firm Keller Lenkner, the opioid epidemic wreaking havoc in Florida and other states across the U.S. was caused by nothing less than total corporate greed on the part of the pharmaceutical entities.

“To be crystal clear, we believe that [Big Pharma] deliberately misrepresented the properties of opioids so they could put dollars in their shareholders’ pockets,” Keller told the Daily Business Review. “This is a systematic, across-the-board misrepresentation to the entire marketplace. On a wholesale basis they misrepresented the addictive properties associated with opioids … because they knew they could pop a lot more pills into the market place. Those allegations are well-documented, and in public record.”

Fort Lauderdale-based attorney Jordan A. Shaw, one of the lawyers who filed the suit, pointed to a June 14 NBC News article detailing much of the public information available on the defendant’s dealings concerning the legal sale and propagation of opioids in Florida through the late 1990s and early 2000s.
The article highlights an incident that saw Purdue admit in a federal courtroom in Virginia that it had previously misled doctors and consumers over OxyContin’s potential to become habit-forming.

“Five years after its legal battle with Florida officials, Purdue made a startling admission in federal court in Virginia. The company pleaded guilty in 2007 to felony charges of ‘misbranding’ OxyContin ‘with the intent to defraud or mislead,’” the story reads. “The company paid $600 million in fines and other penalties. Among the deceptions it confessed to was directing its salespeople to tell doctors the drug was less addictive than other opioids.”

Shaw, who is a partner at Zebersky Payne Shaw Lewenz, LLP, noted that Florida has been hit particularly hard by the opioid epidemic, both with regards to its human cost and the effect its had on the medical insurance market.

“The Florida health care market is obviously one of the largest in the U.S.,” Shaw said. “Opioids have become a business, which is terrible. You cant talk to a policeman or firefighter without them mentioning narcan [a medication designed at treating narcotics overdoses.] I think the Florida market has been hit as hard as — if not harder than — any other market in the country.”

Keller tells the Daily Business Review that Keller Lenkner is taking a “unique approach” to litigation concerning opioids and the companies that manufacture them.

“We are the only ones who are trying to recover on the consumer side — consumers are paying a lot more as a result of the defendant’s misconduct,” Keller said. “Health consequences get passed on through insurance premiums, deductibles, and co-pays. This is our way to hold the defendants accountable to those undesirable trends.”

Keller adds that he and the attorneys at Keller Lenkner began to look at the opioid crisis through a different lens than what’s generally expected, leading to the firm’s suit in Florida as well as similar class actions in New York, Pennsylvania and other states.

“The first thing that probably pops up is someone who has overdosed or lost their job, … but they’re not amenable to class-wide treatment because their harms are very individualized,” Keller explained. “So every person who has been directly touched by the opioid epidemic has a unique set of damages, and that’s the death knell of a proposed class action.”

To avoid this, the complaint filed by Keller and Shaw casts a wide net for a class aggrieved by the defendants, defining the plaintiffs as “all persons (including natural persons and entities) who purchased health insurance policies in Florida from 1996 through the present; and all persons who paid for any portion of employer-provided health insurance from 1996 through the present.”

Unlike wrongful death suits — which inevitably involve unique circumstances between cases, and in turn make it difficult to show a commonality among proposed class members — this complaint takes the insurance-cost route.

“Damages are more ascertainable… under our theory of the case that insurance companies are increasing costs on a wholesale basis,” Keller said, noting that the plaintiff and unnamed potential class members are all paying higher insurance premiums.

Because the opioid crisis hit South Florida so acutely, Shaw and Zebersky Payne Shaw Lewenz, LLP were brought in by Keller Lenker to assist with filing and handling the case. Shaw was vocal about his hopes that this lawsuit would affect change in a way that previous, more individualized lawsuits have not thus far, describing class action suits as “quasi-legislative.”

“The thing about bringing something on a class-wide basis is that you can bring about change,” Shaw said. “It’s it’s very clear that Big Pharma is not reacting to the deaths in these one-off cases. Wrongful death actions are not going to hurt them in their pocket, whereas the theory that Ashley’s group has come up with allows people to come together and put pressure on Big Pharma.”

In a statement to the Daily Business Review, Janssen Pharmaceuticals Inc. said “opioid abuse and addiction are serious public health issues,” and that the company is “committed to being part of the ongoing dialogue and to doing our part to find ways to address this crisis.”

“Our actions in the marketing and promotion of these medicines were appropriate and responsible,” Janssen’s statement reads. “The labels for our prescription opioid pain medicines provide information about their risks and benefits, and the allegations made against our company are baseless and unsubstantiated. In fact, our medications have some of the lowest rates of abuse among this class of medications.”

None of the other defendants named in the suit responded to requests for comment by deadline.

Article originally published at law.com on August 22, 2018 by Zach Schlein

Jordan A. ShawSouth Florida and Chicago Law Firms Ally in Class Action Against Drug Manufacturers

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