Baltimore likely won’t see a blockbuster award from opioid distributors McKesson and Amerisource Bergen if the city ends up winning its case against the companies after a decision from the presiding judge.
Baltimore City Circuit Judge Lawerence P. Fletcher Hill ruled that the jurors will not be able to award punitive damages in the case, severely limiting what the city can receive.
“The idea is to punish a defendant with punitive damages,” said Carl Tobias, a law professor at the University of Virginia. “You are saying, ‘What will make an example of the defendant?’ and often the awards are extremely high. The multiple can be sometimes 10 times the amount or even more of the compensatory damages.”
To be eligible for punitive damages, the city needed to show “actual malice” on the part of the companies.
Maryland has a high bar for that standard, Tobias said.
The city of Baltimore did not respond to a request for comment due to ongoing litigation.
Baltimore is still eligible for compensatory damages from the harm caused by the opioid epidemic if the jurors rule in favor of the city.
Attorneys for the city rested their case on Monday after nearly a month of testimony.
Attorneys for the city brought up Drug Enforcement Agency experts, city officials and showed depositions from top ranking executives in the companies.
McKesson and Amerisource are the only companies still standing after six companies, including Walgreens, Cardinal Health, CVS and others settled out of court.
The city’s lawyers led by Bill Carmody, a partner at Susman Godfrey, made the case to jurors in the Circuit Court of Baltimore City that the companies ignored warnings from the Drug Enforcement Agency that even one out-of-line pharmacy could pose huge dangers to the community.
The lawyers stated that the companies purposely did not report pharmacies that overfilled opioids and even worked with the pharmacies to skirt laws and fill the most prescriptions without raising flags.
To that end, the city’s lawyers are alleging that the flood of opioid prescriptions, poorly regulated distribution and loose oversight hooked a disproportionate amount of Baltimoreans on the drugs and caused up to 80% of the opioid use disorder in the city.
That, the lawyers say, caused an influx in overdoses and a strain on city resources.
McKesson and Amerisource will now have an opportunity to bring up their own witnesses as they begin their defense.
The companies are claiming that they were purely the middlemen in the situation.
Amerisource’s lead lawyer Robert Nicholas, a partner at Reed Smith, said the city’s suit is purely about money and that the company complied with what the Drug Enforcement Agency asked.
The companies’ attorneys tried to pin the blame of the opioid epidemic on drug cartels and gangs for selling illegal drugs and on doctors for overprescribing legal opioids.
The lawyers claimed that the companies had no responsibility to decide if someone was in need of opioids or not, but rather it was the doctor who decided that.
The lawyers also stated that the Drug Enforcement Agency was notified of all drugs that were moved and therefore should have been more aware of issues.
In 2022, Nicholas successfully defended Amerisource in a case where West Virginia tried to tie distributors to the opioid crisis.
