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Wagstaff & Cartmell Representing 2 Kansas and Missouri Counties in Opiod Epidemic

Joining the effort to combat the opioid epidemic, Wagstaff & Cartmell has recently been named to represent two Kansas counties and two Missouri counties in suits which allege that pharmaceutical companies aggressively pushed pain killers while falsely representing the dangers of addiction.

Montgomery and Bourbon counties in Kansas, as well as Lafayette and Worth counties in Missouri, have filed federal suits against over a dozen manufacturers and distributors for being in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).

Bourbon County stated that the goal of its suit is to “to abate the public nuisance caused by rampant and uncontrolled opioid use and addiction, and to recoup taxpayer monies that have been spent because of defendants’ false, deceptive and unfair marketing and/or unlawful diversion and distribution of prescription opioids.”

Companies engaged in Marketing Schemes

The suit further alleges that manufacturers turned to “marketing schemes” to persuade doctors in patients to use opioids for chronic pain, without regard to the ravaging effects of addiction has on patients that has ultimately contributed to a drastic increase in overdose deaths in Kansas since 2013.

Defendants in the suit include Purdue Pharma, alleged to sell as much as $3 billion worth of OxyContin per year, making up about 30 percent of the entire pain killer market. In a similar 2017 lawsuit in Mississippi, Purdue said it was “deeply troubled by the opioid crisis” and pledged to stop marketing opioids to doctors.

Other defendants include McKesson Corp., Cardinal Health Inc. and Amerisourcebergen Drug Corp., who make up 85 percent of the market share for the distribution of prescription opioids.

Unlawful Conduct Leading to Increased Opiod Usage

The named companies, along with others, are said to have been faced with the impossibility to legally achieve increasing sales ambitions. Racketeering thus became utilized when they failed to “maintain effective controls against diversion of their drugs, to design and operate a system to identify suspicious orders of their drugs, to halt unlawful sales of suspicious orders, and to notify the DEA (Drug Enforcement Administration) of suspicious orders.”

The plaintiffs have called for a jury trial, stating that “Each (distributor) has been investigated and/or fined by the DEA for the failure to report suspicious orders.” Because of this, the plaintiffs “[have] reason to believe each has engaged in unlawful conduct which resulted in the diversion of prescription opioids into our community.”

While none of the named defendants have yet been served with the latest lawsuit, it is hoped that the coming case will result in these companies being held responsible for their negligent actions, and that genuine efforts to fight the opioid epidemic are seen from these companies, as they have promised to do in the past.

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Wagstaff & Cartmell Attorney Brian Madden’s Case Development: The Insys Therapeutics Whistleblower

A development in the ongoing federal case against Insys has revealed that a former pharmaceutical sales representative who frequented the office of defendant Dr. Steven Simon was actually working with the government in a separate whistleblower case against his own employer during their contact with one another.

The recently unsealed document reveals that Torgny Andersson was one of five industry insiders who filed whistleblower complaings against Insys. According to Wagstaff & Cartmell attorney Brian Madden, who is currently representing Andersson in the case, Andersson and other insiders “[have] assisted the Department of Justice with its investigation into Insys sales practices since October of 2013.”

Illegal Kickback Scheme

Andersson’s complaint confirms federal prosecutors’ claim that Insys executives engaged in an illegal kickback scheme by explicitly instructing drug reps to pay physician speakers based on how many Subsys (an oral fentanyl spray) prescriptions they wrote—an incentive which many, like Simon, are alleged to have taken full advantage of, despite the harmful side effects Subsys has had on former patients.

Contextual details of the case also confirm that Simon was not only the top-paid Subsys speaker in Andersson’s territory of Kansas, Missouri and Nebraska, but was also among the top 10 most-paid representatives nationwide, making approximately $221,000 between August 2013 to Decmeber 2015.

Simon Denies the Kickback Claim

Despite Simon’s claims that his relationship with Insys was purely professional and that no such kickback offer was extended toward him, his status as a former Insys speaker trainer and position on an Insys medical advisory board has raised suspicion of him partaking in the scheme alongside Insys founder John Kapoor and several other Insys executives.

“Sure, I heard those type of things (about kickbacks). Did Torgny ever, or did anybody in the organization ever, offer me anything like that? Absolutely not,” says Simon. “So from my own experience, my relationship with Subsys or Insys the company was virtually the same as it was with any other company I dealt with. It was professional.”

It is unclear whether Andersson’s whistleblower suit will affect the three civil cases against Simon, as Andersson was named among several Insys employees as a defendant in these cases. Kapoor has asked that civil actions against Insys be put on hold until the criminal charges are resolved, and their trial is currently scheduled to take place in January 2019.

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Taking A Stand Against Drug Abuse in Southwest Virginia

As part of an ongoing effort to confront prescription drug abuse in Virginia, Wagstaff and Cartmell, LLP has recently joined forces with a team of local and international lawyers to sue major prescription drug manufacturers and distributors on behalf of Smyth, Wythe and Russel counties in southwest Virginia. Taxpayers have lost millions of dollars each year due to drug abuse, and attorneys representing the counties claim that the companies are to blame for the negligent prescribing and distribution of opioid medications to a vulnerable population.

“We want to be able to recover compensation for our communities and our counties that have suffered these tremendous losses because of the increased incarcerations and the increased law enforcement presence, social services, medical, and the list just goes on and on,” said Virginia Senator Ben Chafin, one of the lawyers who has agreed to represent this case.

Local and National Calls-to-Action

In addition to Senator Ben Chafin, Virginia Delegate Jeff Campbell and Attorney Kimberly C. Haugh of Abingdon, VA have also taken on the case to help their fellow Virginians receive compensation for their losses. At the national level, Wagstaff and Cartmell, LLP of Kansas City, as well as Dumas Law Firm, LLC of Mobile, AL are also joining in the litigation.

Each of the individual counties are expected to prepare their own unique and individual filings, and attorneys expect that additional southwest Virginia counties will seek representation as evidence for the case grows.

“There are a number of other counties throughout southwest Virginia who we have appeared at board meetings and given a presentation for. We understand they are currently in the process of choosing representation, so we expect we will be representing a large number of counties in southwest Virginia, Chafin said.

What Happens Next?

Specific defendants have not yet been named in the case yet, but it is thought that they will be major prescription drug manufacturers and distributors. Attorneys predict that the cases in Virginia will likely be involved in the multi-jurisdictional litigation suits currently being heard in Cleveland, OH. The Virginia cases are expected to be filed to the U.S. District Court in Abingdon, VA during the week of May 15, 2018.

“We will have to build an economic model and we have hired preeminent economists nationwide to [build it]. It will be unique to the individual county, but I can fairly safely tell you we’re talking additional millions of dollars per year in lost revenue addressing the impact as a result of the opioid crisis,” Jeff Campbell said.

How the cases in Virginia will play out in comparison to the Ohio cases—and other similar cases that may begin litigation across the country—remains yet to be seen. Considering our past history of representing mass tort drug cases at the national level, we hope that the additional expertise our colleagues bring to the Virginia cases will ensure that thousands of Virginia citizens are awarded the justice and resources they rightfully deserve.

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Jeff Kuntz nets a $35 Million Verdict

After a nine day trial in the United States District Court for the Northern District of Indiana, a nine-member jury returned a $35 million verdict in favor of a northwest Indiana couple, Barbara and Anton Kaiser, for the injuries Barbara incurred from a Johnson & Johnson product, the Prolift transvaginal mesh.  The jurors found that Johnson & Johnson, and its sub-division Ethicon, negligently designed the Prolift and failed to adequately warn of the device’s risks.  The jury awarded the Kaisers $10 million in compensation for their injuries, and $25 million in punitive damages as punishment to Johnson & Johnson for its willful and wanton disregard for patient safety. The case is Barbara Kaiser et al v. Ethicon, Inc. et al., Case Number 2:17-cv-00114, in the United States District Court for the Northern District of Indiana.  Jeff Kuntz was Co-Lead Counsel with Tom Plouff and Ed Wallace.  Andy Faes of Wagstaff and Cartmell helped second chair the case.

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THOMAS P. CARTMELL ADMITTED TO AMERICAN COLLEGE OF TRIAL LAWYERS

Thomas P. Cartmell has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.

The induction ceremony at which Tom became a Fellow took place before an audience of approximately 600 persons during the recent 2017 Spring Meeting of the College in Boca Raton, Florida.

Founded in 1950, the College is comprised of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standard of ethical conduct, professionalism, civility, and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship.

Membership in the College cannot exceed one percent of the total lawyer population of any state or province. There are currently approximately 5800 members in the United States and Canada, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction) and Honorary Fellows. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on important legal issues relating to its mission. The College strongly supports the independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.

Tom Cartmell is a partner in the firm Wagstaff & Cartmell LLP and has been practicing for more than 20 years. The newly inducted Fellow is an alumna (alumnus) of the University Of Kansas School Of Law.