Expert: Opioid Legal Settlement in Texas Could “Move the Needle”

In an interview with Pharmacy Times, Ron Lanton, JD, principal at Lanton Law, discussed the recent Johnson & Johnson legal settlement in Texas to resolve opioid claims. Lanton said this decision could be significant but working with prescribers is an essential step to shifting the opioid epidemic.

Aislinn Antrim: Hi, I'm Aislinn Antrim with Pharmacy Times. I'm here with Ron Lanton, principal at Lanton Law, to discuss the recent J&J decision in Texas and what it could mean for opioid prescribing and for pharmacists. So, there's been many, many lawsuits, but one of the key ones is in Texas. Can you kind of review this decision and what it is? What does it mean?

Ron Lanton, JD: Yeah, just generally speaking. So basically, we have this suit that was brought by Texas hospitals, and they've been one of many people trying to get some kind of justice behind this very, very sad issue. What's interesting is the amount. So, we're talking about $26 billion [total], and J&J was featured in this one. So, it was one of those prominent manufacturers, which I believe no longer has that type of product, because of this lawsuit that they're facing. So, what's going on is that we have 3 wholesalers, and J&J has a smaller amount of money that they're responsible for. And everyone's spread out over a number of years—I think J&J is spread out by about 9 years, from what I remember looking at the case. So, there's a lot of states attorneys general that have grouped together to try to figure out whether this is the appropriate settlement or not. It's a rather large settlement but the thing is, there have been so many people that have been impacted by this. So, is that number big enough? And I think that's the question that a lot of states attorney generals are trying to figure out for their own respective states. Did I get enough based on the harm that's happened to the constituents in my state? And I think that's the risk. And we'll talk a little bit more about these specifics, about, you know, who should join and who shouldn't, but that's kind of the background. This may be a needle mover case, and I use that term to mean, because there are so many other lawsuits about this, is this the one that everyone's going to gravitate toward? And say, this is it?

Aislinn Antrim: Definitely. What impact could this decision and other similar ones have on prescribing?

Ron Lanton, JD: That's an interesting question, because you look at all of these decisions that have been pending around the country and it's based on distributors and the pharmacies. And to a legislator, you know, someone that really wants to go after the industry, I can kind of understand you're looking for the deeper pocket, you're looking for where these drugs primarily came from, and the outlets. And it makes sense, right? But they're really missing the beginning piece of this, which is you can't have any of the stuff filled and moved without a real prescription. So, I don't want to demonize doctors, okay, there are really good doctors, there's probably way more good doctors than there are the ones that did the bad stuff, which is the over prescribing, and the pill mills and the things that we're seeing, which are the results of these lawsuits. But if you really want to fix what's happening in the industry, and stop patients from, you know, being taken advantage of, you’ve got to go to the doctors. And I really just think that there's been an unnecessary tilt towards the end user, or the end provider, which is the pharmacy and the distributors. And what's really interesting—I used to work in wholesale. I can't speak to these individual companies that are being discussed in this lawsuit, because I didn't work with them. But I do know that this has been a problem for both pharmacies and distributors, because there is no guiding threshold for what's too much. So, wholesalers have gone back to the DEA numerous times. And they've said, well, we see customers with this much and is this okay? The DEA won't put out a clear policy. So, I think we need some regulatory guidance behind DEA in order to kind of flow through the system about what's good and what isn't. Otherwise, we have a lot of people guessing, and that's really not yielding good results.

Aislinn Antrim: Definitely, as we've seen. What do these decisions ultimately mean for patients on their end?

Ron Lanton, JD: The patients are what I'm worried about. Because what we're seeing right now, at least from the decisions that are pending, is you've seen states that have passed laws to set up trust accounts for settlements from opiates. And the issue is, what are those states going to do with that amount of money? And I think this is one of these once-in-a-lifetime things to get straight, and at least put a policy in. And then, I know it's tough to come back and get funding later, but if you're getting good results, let's go ahead and keep doing it. So that'd be a really hard public policy reason to not do it. The issue is, when you're dealing with patients and opioids, it's not just a cut and dry issue of just get them off and, you know, shame on you for getting on these things. There are so many different reasons for why patients are on these things. It's, you know, back pain, or a lot of it’s mental health, maybe it's financial, you know, jobs have been tough. I know that, you know, we were seeing all kinds of different numbers about, you know, the job pool and everything like that. But, you know, are these jobs that really people really want to have? There are housing problems, there's all kinds of personal problems.

So, we can't just classify a patient and say, yeah, we're just going to go ahead and get them off. So, I think that these states have to do a better job and policing where these monies are going. And talking to different people in different communities to really get to the nuts and bolts about, why are these happening? So, we have to have a lot more of an evidence-based standard behind that. And I think talking to maybe some chronic care groups, to see what their viewpoints are maybe talking to naturopaths and saying, ‘Okay, if you are on these things, and you're having a hard time getting off, these are some alternative measures to take to help kind of ease that transition.’ So, a lot of communication has to happen. I just hope that, you know, for the patient's sake, a lot of these states get it right. And it really just depends on what state you live in, you know, so there are a lot of different variables.

Aislinn Antrim: Definitely. As you mentioned, a lot of this depends on what state you're in, but what should pharmacists know about dispensing opioid medications from the legal standpoint?

Ron Lanton, JD: That's a good question, because I know a lot of pharmacies are worried about it. They're thinking, ‘Well, gosh, you know, I'm really trying to do the right thing. Are my risk protocols enough?’ So, I think one, you know, depending on your state, you have to know what your state law is. And if you have counsel, ask your particular counsel, but just you know, for me, generally speaking, it comes down to the state. So be aware of what your state has passed as far as laws on opiates, and what you can and can't dispense. Two: we’ve got to look to the board to see how the board is enforcing that. Three, I think what you really need to do, if you don't have one already, and most pharmacies do, they have an internal risk protocol. So sometimes it may not be written, but I would encourage people to write these things down so they can train other staff about what they should be looking for. But, you know, there are protocols that they have, as far as, well, maybe this patient comes in, you know, more than they should have. Why is that? That's the nice thing about independent pharmacy is because they have that personal relationship, they can kind of know what's going on with patients and police that a little closer. I think [prescription drug monitoring programs], having the pharmacist check that stuff, that's another risk protocol thing that they have. Maybe talk to their wholesalers about some things, but I think the most important thing is when I talked about the problems with the prescribers, talk to your prescribers and know who they are. It’s not enough to just know, okay, well, that doctor is down the street, and I kind of know him, but you really want to go and make that extra step because this is your business and you want to make sure that you minimize your risk. So, how do you minimize that? Well, go talk to the doctor, see if you can get a sense for if that doctor is okay. Or not, you know, you kind of know what's good, and what's bad, just a little voice inside you that says, ‘You know what? That person's been prescribing a little too much, I really should check out why.’ So really, just taking that extra step I would encourage. I don't think that's been done enough.

Aislinn Antrim: Absolutely. Well, finally, could this type of legal decision become a trend with other manufacturers or wholesalers? And what could that mean?

Ron Lanton, JD: I think the jury's still out on that question, because this case that we're talking about here with J&J, is this going to be the case? We don't know. So, I know that there's a couple of states that are still out as far as the state attorney general is trying to figure out, are we going to still pursue our own cases? Or are we going to join this one? So, for example, Alabama, Oklahoma, West Virginia, Washington State, New Hampshire, they're not part of this right now. Could they be part of it? You know, it's a risk, I think, if you aren't, and then this becomes the case. Because if it becomes the case, can you get something outside of what's already been agreed upon? That's hit or miss. So, we don't really know.

So, what do we what do we know? I think it's still a little too early to tell. I think that the wholesale industry is definitely going to put some more additional risk protocols in place for those. I mean, it's a big settlement. So, they're going to really come down and make sure that things are a little tighter. I think, like I said, I encourage pharmacies to tighten up individual protocols as well. But it remains to be seen. I think this is just a really sad issue. No amount of money is going to fix it. But I think in order to really get to the root of the problem, 2 things: deal with the prescriber, see if we could do some better policies up there on that end of the chain, at least, and then come down to each state and say, are you looking at the data and understanding what the patient population that's taking opioids, why they're doing it, how it's being affected, and are there better things that you could do on a state level to make sure that problem is addressed?

Aislinn Antrim: Absolutely. This has been super interesting. Thank you for talking with me about it.

Ron Lanton, JD: Always.