Michigan Uses Drug Trafficking Law to Sue Opioid Distributors

Michigan on Tuesday sued four companies over the deadly painkiller epidemic, becoming what state Attorney General Dana Nessel said is the first state to sue major opioid distributors under a liability law that is typically used to go after drug dealers.

The lawsuit was filed in Wayne County and names as defendants AmerisourceBergen, Cardinal Health, McKesson, and Walgreens, which have also been sued in other states. The move makes Michigan the 49th state to have filed some kind of legal action against the opioid industry. Only Nebraska has not.

Nessel said Michigan’s suit is different because it targets distributors under a 1994 state law that was enacted to combat illegal drug trafficking. The law lets people and governmental entities sue drug dealers for damages, even if the dealer did not make a sale specifically causing an injury.

The companies “all used their licenses to distribute controlled substances in Michigan as a cover for what is essentially a criminal enterprise,” Nessel said during a news conference attended by Gov. Gretchen Whitmer and the state’s chief medical executive. “They knowingly and deliberately distributed drugs in our state without controls. This was not only negligent. It was unlawful, a public nuisance.”

The suit says more than 2.8 billion opioid pills were distributed in Michigan between 2006 and 2012. McKesson distributed more than 500 million, with Walgreens—which distributes opioids and also dispenses prescriptions at its stores—“not far behind,” according to the complaint. Those who bought the drugs first needed to obtain a doctor’s prescription.

Michigan had nearly 2,600 overdose deaths in 2018, of which 2,036 were opioid-related. It was the first decline in six years.

Nessel noted that McKesson in 2017 agreed to pay a $150 million to settle a federal complaint alleging that it had failed to detect and report pharmacies’ suspicious orders of prescription pain pills. In 2016, Cardinal Health agreed to pay the federal government $44 million to resolve similar allegations. And Walgreens, the country’s second-largest pharmacy chain, agreed to pay $80 million in civil penalties in 2013.

In October, AmerisourceBergen, Cardinal Health, and McKesson reached a $215 million settlement with two Ohio counties to avert the first federal trial over the crisis. Walgreens is the only defendant left in that trial.

Nessel said the four companies owe Michigan for increased costs related to law enforcement, drug rehabilitation, early childhood and special needs education, and health care, including for infants born to opioid-dependent women. She said she hoped Michigan could recoup more than $1 billion from the industry.

A Walgreens spokesman said the company doesn’t comment on pending litigation. AmerisourceBergen, Cardinal Health, and McKesson didn’t immediately reply to messages seeking comment. The companies have previously argued that they functioned as a delivery service and kept federal authorities apprised of the quantities being shipped.

Nessel, a Democrat who took office nearly a year ago, said it took Michigan longer to sue than other states and local governments in part because her predecessor, Republican Attorney General Bill Schuette, didn’t do “a damn thing” to move forward with lawsuits that are “critical in regards to getting the finances that we need and that our state deserve as we tackle this incredibly devastating epidemic.”

In response, Schuette said he would “make no apologies” for what he said was an aggressive approach to fighting opioids.

While this is the first time Michigan is directly suing over the opioid epidemic—which Whitmer, a Democrat, called “historic”—Nessel is among about half of the nation’s attorneys general who reached a tentative settlement proposal with OxyContin maker Purdue Pharma, which is in bankruptcy court as part of the deal. The settlement could be worth up to $12 billion over time. Nessel’s office also has been involved in settlement negotiations with other entities, a spokeswoman said.