Years into a scourge that has cost this country thousands of lives and billions of dollars, Canadians looking to sue drug makers over their alleged role in the overdose epidemic have been given new hope by a U.S. court ruling.
In a landmark ruling this week, an Oklahoma judge ordered Johnson & Johnson and its subsidiaries to pay $572 million (U.S.), after the state successfully argued that the company mounted a misleading marketing campaign overstating the drugs’ effectiveness for chronic pain and understating the risk of addiction — allegedly leading to a costly and damaging opioid epidemic.
Experts say that win could mean success in similar cases in Canada.
The prospect of mounting legal cases poses an existential risk to some pharmaceutical companies. NBC News reported Tuesday that drugmaker Purdue Pharma was negotiating a multibillion-dollar settlement with lawyers across the U.S. that would resolve about 2,000 lawsuits against the company, which would declare bankruptcy as part of the deal. That deal has not yet been approved.
“American precedent doesn’t count in Canada,” said Tony Merchant, a Saskatchewan lawyer. “But it’s going in the right direction and judges here are going to look at that.”
The legal fight in this country is being waged on two fronts: by provinces and by individuals.
British Columbia filed a lawsuit against opioid manufacturers in August 2018, including Johnson & Johnson. If certified, that case will automatically include all of the provinces and territories. Individual Canadians, meanwhile, have also undertaken their own suits, spanning multiple provinces and seeking millions of dollars in damage.
Merchant represents Saskatchewan man Demetrios Perdikaris in a proposed class-action lawsuit against Purdue Pharma Inc., the manufacturer of the painkiller OxyContin. Perdikaris was a successful chef, Merchant said, who developed an addiction to painkillers after he sustained an injury that prompted doctors to prescribe him pain medication.
“It ended up costing him his employment and has had a huge impact on his health,” Merchant said of Perdikaris’ addiction, calling it a “typical but unfortunate case.”
The case will return to Saskatchewan court next week, and Merchant said the decision in Oklahoma has made him more hopeful of the outcome. Merchant and a team of lawyers are seeking $20 million (Canadian) in damages from Purdue Pharma Inc., for Perdikaris and others across the country who have been harmed by opioid prescriptions. Purdue Pharma’s Canadian arm has agreed to settle the suit, but the company also noted it was making no admission of liability.
The lawsuit also includes provincial health insurers from Alberta, Saskatchewan, Ontario, Manitoba, Quebec, Nova Scotia, Prince Edward Island, New Brunswick and Newfoundland and Labrador, which would collectively be awarded $2 million of the winnings if successful.
But $20 million barely scratches the surface of the total cost of the opioid crisis for Canadians. According to national data, the opioid crisis claimed more than 11,500 lives in Canada from January 2016 to December 2018. The number of opioid-related deaths in 2018 hit 4,460 — which is 12 deaths per 100,000 people, or one death every two hours, according to a national report from Statistics Canada.
The number of deaths due to the opioid crisis has been so significant that it has impacted overall life expectancy in both males and females in Canada. In the provinces most impacted by the crisis, life expectancy actually decreased — by 0.28 years in B.C. and 0.21 years in Alberta.
The University of Victoria’s Institute for Substance Use Research estimates the total financial burden on the health care system, the criminal justice system and the overall loss of productivity between 2007 and 2014 alone to be more than $3 billion Canada-wide.
“(The crisis) started to uptick around 2014, so we expect that to increase, presumably substantially,” said Justin Sorge, an associate researcher with the institute.
In Canada, a similar set of lawsuits involving major tobacco manufacturers have been underway for decades, with all ten provinces embroiled in legal challenges against tobacco companies, starting with B.C. in 1998, in an attempt to gain back millions in costs related to illnesses caused by tobacco use.
Currently, these cases are moving slowly through the legal system. Earlier this year, two large manufacturers were ordered to pay $15-billion in a class-action lawsuit in Quebec, but were then granted creditor protection, further stalling the case in court.
Rob Cunningham, a senior policy analyst at the Canadian Cancer Society, said that while he does not know exactly how the cases against opioid manufacturers will play out, there were a number of important similarities to the lawsuits against tobacco companies.
“The main similarities is that there was serious harm to the population, including death, “ he said. “Another is that health care costs were incurred by provincial governments, and a third may be allegations related to deceptive marketing of the products.”
Cunningham said that the legal actions against tobacco companies undertaken by provinces — especially in B.C., where a legal statute was approved to facilitate the case — could pave the way for the opioid lawsuits.
“A lot depends on the facts and the evidence, but given the experience of the province’s lawyers in cases of this nature, that may make it easier in a subsequent situation,” Cunningham said.
British Columbia’s opioid lawsuit is seeking to recoup a substantial amount of money from more than 40 pharmaceutical companies to cover damages incurred nationwide due to the ongoing opioid crisis. Reidar Mogerman, the lead council for the province’s lawsuit, said B.C. is asking to recoup costs from the last 20 years, as well as costs they expect to incur in the future as the opioid addiction crisis continues.
“The case seeks recovery of all of the health care costs that flow from wrongdoing by these opioid companies,” Mogerman said.
He said that they have not yet done a final analysis of how much the provinces, territories and federal government have spent in health care costs for the opioid crisis. He suggested using the Oklahoma award, and weighting it to the Canadian population and the B.C. lawsuit’s intention to cover the past two decades’ worth of costs, to come up with an estimate.
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Doing so would peg the Canadian suit at $108.5 billion in damages over the past 20 years.
And that number could be higher still, as that figure doesn’t cover future years of the overdose crisis, for which the suit is also seeking compensation.
“The dollars are massive,” Mogerman said.
B.C. has assembled a working group for other provinces to provide feedback on the lawsuit. David Eby, B.C.’s attorney general, confirmed that New Brunswick, Newfoundland and Labrador, Nova Scotia and Quebec are participating in the national working group. Saskatchewan has confirmed its participation as well. Eby added Alberta is “still deciding whether and how they’ll participate.”
Ontario announced its interest publicly in the lawsuit, with attorney general spokesperson Brian Gray saying the province supports B.C.’s effort.
Ontario’s Opioid Damages and Health Care Costs Recovery Act was also introduced in May of this year, Gray said. If passed, it would give the province the right to sue opioid manufacturers and wholesalers for their alleged wrongdoing to recover health care costs borne by Ontario taxpayers due to opioid-related harms.
The win in Oklahoma is good news for the provinces, legal experts say, as it could increase the pressure on Johnson & Johnson to settle in Canadian cases.
“The decision in the U.S. shows that the company has legal exposure — a court could well find the same marketing in Canada was misleading and deceptive,” said Jasminka Kalajdzic, an associate professor in the faculty of law at the University of Windsor, whose areas of research include class-action lawsuits.
“So the provincial governments have some leverage to negotiate a deal.”
While decisions by American judges are not binding on Canadian courts, the findings in Oklahoma could still prove to be “influential” in any lawsuit that makes it to court in Canada, whether involving Johnson & Johnson or other drug companies, said medical malpractice lawyer Ron Bohm, former president of the Ontario Trial Lawyers’ Association.
“Let’s just assume that the marketing was very similar across the board, then I would think (the drug companies) would be worried about very similar outcomes, and rightfully so,” Bohm said. “This is the time for Canadian jurisdictions, the provinces and territories, to very aggressively and in a co-ordinated fashion assert their claims.”
But even with this American precedent, Mogerman said it could take several years before B.C.’s case goes to court, as many of the pharmaceutical companies will have to be served through international treaties. The case could also be binding in other parts of the world where the companies operate, and some may decide to fight instead of reaching a settlement.
“Even if it moved very quickly, in the absence of settlement this case is not going to be solved for many years,” Mogerman said.
The pharmaceutical companies named in the lawsuit have not filed responses to the civil claim yet, but they have submitted jurisdictional disputes, arguing that the B.C. Supreme Court does not have authority over them.
Oklahoma’s case may lead to companies choosing to settle rather than go to trial, said Allan Hutchinson, law professor at York University’s Osgoode Hall law school.
“Mindful of the experience in Oklahoma, this will put a lot of pressure upon the defendants to try to come to some kind of settlement,” he said.
With files from Wanyee Li in Vancouver, Cherise Seucharan in Vancouver, and Jen St. Denis in Vancouver.