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Who's to blame? Huge trial could answer that
Largest civil action in U.S. history may dig into effect of profit-driven health care

OPIOID CRISIS

For the families of the roughly 400,000 Americans who have died of opioid drug overdoses since 1999, a legal drama scheduled to unfold in an Ohio courtroom in October may feel like a true shot at justice.

After downplaying the risks of dangerous and highly addictive prescription narcotics, and of profiting from their spiraling misuse, the purveyors of prescription painkillers could be forced to reckon with the consequences of their actions.

The civil trial promises to expose evidence suggesting that dozens of companies made deceptive claims about opioids, flooded the market with their products, engaged in shady record-keeping and lucrative self-dealing, and looked the other way as the body count mounted.

For their role in seeding and supplying an epidemic of addiction, a jury could hold the companies liable for billions of dollars in damages.

Equally important, a trial in the case known as Multidistrict Litigation 2804 would explore some of the thorniest questions in America today: Who bears responsibility for addiction? Can businesses be blamed if government agencies fail to enforce the law? And when profits drive the companies that deliver American health care, where does that leave patients?

Questions like these "require a broad conversation," said Thomas Cooke, a professor of business law at Georgetown University. But the companies in the Ohio case would "rather not have that conversation."

And U.S. District Judge Dan Aaron Polster, who presides over MDL 2804, doesn't think a Cleveland courtroom is the place to resolve such conundrums. Polster has leaned hard on all sides to settle the case and avert a trial.

Purdue Pharma and the Sackler family that controls it could pave the way. The MDL suits accuse them of engaging in a deceptive campaign to market OxyContin, and in September they announced a deal to have the Sacklers pay $3 billion and steer all of Purdue's future profits to states, counties, cities and federal territories that sign on to the settlement. Purdue says the payout could be worth more than $10 billion over time.

Neither the Sacklers nor Purdue would acknowledge any wrongdoing.

Whether deals like this deliver justice will be in the eye of the beholder. But they could bring swift resolution to a case that otherwise threatens to grind on for years. With opioids claiming an average of 130 lives a day in the United States, those who favor a settlement argue that time and money are better spent fighting the epidemic than debating who's to blame for it.

* * *

Addiction to prescription opioids — including oxycodone, hydrocodone, fentanyl, morphine and codeine — now rules the lives of roughly 1.7 million Americans. Some 652,000 Americans use heroin, and roughly 80% of them are thought to have started down that road by misusing prescription narcotics. Opioid-related overdoses claimed the lives of 47,600 people in 2017.

And it will get worse. On its current trajectory, the epidemic could kill close to 82,000 people a year by 2025, according to one recent projection.

The White House Council of Economic Advisers estimated that opioid abuse cost the nation $504 billion in 2015 alone — not only for treatment and policing, but also for the lost economic potential of those ensnared by the drugs.

The case in Cleveland is the largest civil action in U.S. history. It consolidates some 2,000 suits brought by thousands of counties, cities and tribal entities against dozens of defendants. The plaintiffs include consumers, hospitals knocked on their heels by the opioid epidemic, and insurance plan administrators.

In a separate case, 49 states — all except Nebraska — are suing the companies that have made, marketed, distributed and dispensed opioids. That action is also driving toward a massive settlement, and it could muddle the Ohio proceedings even more.

"It's diabolically complicated," said Mike Moore, an attorney representing four states and a handful of cities and counties in the MDL 2804 suits.

The plaintiffs charge that corporate greed trumped the public's health at every turn.

Greed drove opioid manufacturers to oversell and overproduce the drugs, the lawsuits allege. Greed drove companies that distribute prescription drugs to oversupply pharmacies, they add. And greed drove pharmacies to over dispense the drugs to patients who were becoming hooked, to criminals who were diverting them to the black market, and to addicts shopping for a fix.

The evidence for some of these charges is not hard to find. Nor, in many cases, is it contested.

In a 2003 letter to Purdue Pharma, the Food and Drug Administration warned that its advertisements "grossly overstate the safety profile" of OxyContin and charged that the company was promoting it for unauthorized uses.

In a criminal case four years later, Purdue and three top executives pleaded guilty to misleading regulators, doctors and patients about the drug's addiction risks. The company paid $634 million in fines, but no one served jail time.

But in the years since, Purdue continued its efforts to make pain a "vital sign" to be routinely treated, urged doctors to prescribe OxyContin more freely, and targeted patients with ads that portrayed the drug as a lowrisk balm.

In 2008 and again in 2017, drug distribution giant McKesson paid millions to settle federal claims that it was supplying pharmacies with suspicious quantities of opioids. Another distributor, Cardinal, settled similar charges in 2008.

* * *

Some of the cases swept into MDL 2804 accuse the defendants of fraud, corruption and "unjust enrichment." Others claim the companies have run what amount to illegal drug enterprises.

But virtually all agree on this: The collective actions of manufacturers, distributors and pharmacies have led to the social equivalent of an oil spill or a nuclear accident — and the resulting "public nuisance" has foisted steep costs upon cities, counties and tribes.

Moore calls it a "pill spill." And just as BP was required to clean up the oil that gushed from its Deepwater Horizon rig, the makers and distributors of opioids need to clean up the mess they made too.

"You marketed this stuff as nonaddictive, and you got us addicted," said Paul Farrell, a Hungtington, West Virginia, attorney who represents several cities and counties in MDL 2804. "You were supposed to monitor transactions to ensure only medical needs were being fulfilled. Instead, you poured enough opioids into places like West Virginia to supply every American man, woman and child with 67 prescription pain pills a year. ... Clean it up."

That legal argument — that an addiction epidemic can be treated like an environmental disaster — is "incredibly unique," Cooke said.

In August, a court in Oklahoma gave that novel theory some heft. Judge Thad Balkman ruled that opioid maker Johnson & Johnson breached the state's "public nuisance" law and ordered the company to pay the state $572 million in damages. (Johnson & Johnson plans to appeal the ruling.)

The MDL 2804 defendants say this use of public nuisance laws is an overreach.

The defendants also argue they are blameless because they adhered to the complex laws that govern their operations.

Manufacturers say they briefed doctors on opioids' risks as they were understood at the time and produced the drugs under the watchful eyes of the FDA and the Drug Enforcement Administration.

Distributors maintain that they followed DEA rules as they warehoused the drugs, recorded their volumes and whereabouts, and shipped them to drugstores as they were needed to fill prescriptions. Pharmacies say they dispensed the drugs as ordered by doctors and under rules dictated by state legislatures and pharmacy boards.

If any of the defendants had failed to comply with laws and regulations, they assert, the government should have stepped in and stopped them.

Detecting and acting on signs of an addiction epidemic, they say, was the responsibility of police departments, county public health offices, hospitals, state medical and pharmacy boards, the DEA and the FDA.

The argument puts some of the plaintiffs on the defensive, but it's not clear whether it will work in court, legal experts said.

The defendants "have 100% responsibility for what they create and what they put into the marketplace," Cooke said. "A potential juror would see blaming the government as an effort to deflect responsibility."

This line of defense is also undercut by the litany of penalties imposed by government regulators over the years.

The defendants, for their part, have pointed the finger of blame at one another, at the physicians who wrote opioid prescriptions, and at the people who took the drugs and became addicted.


Health
How worried should you be about superbugs? Doc talks drug-resistant bacteria ahead of Omaha visit

Doctors and scientists have been warning for years about microbes’ growing resistance to drugs long used to knock them down.

Recently, they’ve documented urinary tract infections that won’t go away and a fungus preying on people in hospitals and nursing homes. If no action is taken, a report to the United Nations has warned, drug-resistant microbes could cause 10 million deaths a year by 2050.

Dr. Matt McCarthy, an assistant professor of medicine at the Weill Cornell medical school, explores the concerns — and the hopes — around drug-resistant microbes in his new book, “Superbugs: The Race to Stop an Epidemic.”

McCarthy, a staff physician at New York-Presbyterian Hospital, will talk about his book and discuss medical ethics, writing and more with a panel of local educators, ethicists and medical professionals Oct. 8 at the Kaneko as part of its Passages literary program. He spoke ahead of his visit about the threats superbugs pose and what we can do about them. His responses have been edited for length and clarity.

UNIVERSITY OF NEBRASKA AT OMAHA 

Matt McCarthy

Q: How concerned should the average citizen be about antibiotic resistant microbes?

A: People should certainly be concerned, but I don’t want people to be fearful that they are going to somehow contract one of these things and die. The important thing to know is these drug-resistant microbes are all around us.

If you have an intact immune system and your skin is intact, you’ve got protective barriers. If you have a weakened immune system, either because you’re on a medication that alters your immune system or you have a medical condition, you could be at a higher risk.

Q: We’ve heard that we’re running out of antibiotics and other drugs to treat resistant bugs. Are there any new ones on the market — or on the horizon?

A: We’ve had a bunch that have actually hit the market in the past couple of years. The problem is a lot of doctors don’t know how to use them, so I’m less concerned about us developing new drugs than I am with using the ones we’ve got effectively and appropriately. I work at one of the best hospitals in the world, and we don’t always carry the newest antibiotics approved by the FDA. The reason for that is price. If companies invest a billion dollars in a drug they’re going to charge a lot for it. Allergan developed a really powerful antibiotic that costs $4,000 a dose.

Q: How good are hospitals and other health care facilities at stopping superbugs?

A: We’re doing a pretty good job, but we’ve still got more work to do. I’d give hospitals an A-minus and nursing homes a B-minus.

Q: What can hospitals and government officials do to walk the line between informing people that superbugs are present and freaking them out?

A: There could be superbugs on your skin right now, and they’re not doing anything. We as a medical community need to do a better job of engaging with the public and saying here’s what we know about these infections. If you break your leg, you should not avoid the emergency room because you’re fearful you’re going to get one of these things. Doctors are doing everything they can to protect patients. Hospitals are refusing to talk about this stuff. That’s eventually going to change, but we have to figure out how to do it in a way that’s reassuring to people and not alarming.

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Q: Experts frequently encourage antibiotic stewardship — using antibiotics and other drugs only when necessary to avoid driving resistance. What can the average person do to help preserve the antibiotics we have?

A: We have to figure out a way to give doctors the freedom to prescribe — or not — when patients insist on an antibiotic without fear of losing income or patients.

Completing the antibiotic prescription as prescribed is really important. It’s also challenging to know when to go to a doctor for an antibiotic. A lot of people focus on the need for new antibiotics, but we also need better diagnostics that could, for instance, tell your doctor what’s causing your child’s earache — a bacterium or a virus, which would not be helped by an antibiotic. We’re working to couple antibiotic development with better diagnostic tests that are more widely accessible, because antibiotics often are prescribed due to uncertainty.

Q: You mention in a New York Times opinion piece that there is a shortage of doctors who specialize in diagnosing and treating infectious diseases. Why is that a problem?

A: Fewer and fewer young doctors want to become specialists in infectious diseases, and it’s often because they have to take a pay cut to acquire that extra specialty. Doctors are often compensated based on the procedures that they do. Infectious disease doctors don’t do procedures, they give advice. We have not figured out how to compensate these types of doctors for the important work they do.

Q: What else should people know about superbugs?

A: The most exciting thing is that there are all these new antibiotics being found in the soil beneath our feet. We have found microbes that are constantly secreting little chemicals to kill bacteria in the environment around them. Scientists are plucking out these chemicals, and they find they can kill all sorts of bacteria. The challenge is figuring out where we should look and which molecules we should invest in. That’s going to be a big challenge for medicine over the next generation but one that’s ultimately going to produce this treasure trove of lifesaving drugs. That’s what I’m excited about.

17 rare and unusual health stories out of Omaha

Military
Some in Offutt housing complain of mold, leaks and more, but developer says most are happy

Some people who live in privatized Offutt Air Force Base housing say they are fed up with dealing with mold, broken air conditioners, water in basements and leaky roofs in their homes.

Residents will get a chance to air their complaints during a town hall meeting Tuesday.

Across the country, service members living in privatized houses on and near military bases have voiced similar concerns. Private contractors took over base housing during the last 20 years as part of an effort to improve quality.

At Offutt, almost 2,000 military family houses are managed by Omaha-based Burlington Capital. Some are inside the fence line at Offutt, but most are in a neighborhood about a mile west of the base in the former Capehart housing area. It is now named Rising View, after the Burlington Capital unit that manages military housing.

Dominic Vaccaro, president of Burlington Capital’s real estate division, said the complaints are being taken seriously but said a large majority of residents are happy with their houses. He said 85% of emergency maintenance requests have been handled within 24 hours.

“We believe we provide a great deal of service to our residents,” he said.

Jailyn Trammell, 20, said she and her husband, a senior airman, have experienced health problems since moving into Rising View a year and half ago.

“Six months after we moved in, the air conditioning broke. In the last six months, we’ve noticed mold in all the vents,” she said. “I’m constantly getting sick.”

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Col. Gavin Marks, commander of the Offutt-based 55th Wing, has scheduled the town hall-style meeting for 6 p.m. at Peter Sarpy Elementary School in Bellevue to hear and address complaints from Rising View residents.

“Please know this process will continue to receive my full attention until we have alleviated all concerns,” Marks said on his Facebook page.

A Reuters report last year described problems with filthy, mold-infested, poorly built houses at bases across the country, compounded by unresponsive property management companies. The stories prompted congressional hearings in February.

In the wake of those hearings, the Air Force ordered inspections of all privatized military housing at its bases across the country.

At Offutt, the inspections were expanded to include on-base dormitories occupied by single airmen and temporary lodging for service members and their families who have just arrived on base or who are preparing to leave. Those units are operated by the Air Force.

Among the findings:

  • Inspectors found 95 “health and safety” violations in 1,233 Rising View homes occupied by military families, including problems such as mold or faulty wiring. All were quickly corrected, said Col. W.R. Alan Dayton, commander of the 55th Mission Support Group, who oversaw the inspections. About 700 additional homes, which were not inspected, are rented to nonmilitary families, though many have close ties to Offutt.
  • Inspectors found 90 health and safety violations in 588 Offutt dormitory rooms. Those were also corrected.
  • Dayton ordered the closure of the O’Malley Inn, one of two on-base hotels for temporary lodging. The top two floors had been closed since 2014 because of concerns about mold in the ductwork. Though no additional mold was found, Dayton said the rest of the hotel, which used a separate heating, ventilation and air conditioning system, was shuttered as well out of “an abundance of caution.” A second hotel, the Air Force Inn, had a clean inspection.
CHRIS MACHIAN/THE WORLD-HERALD 

Mold discovered in Offutt’s O’Malley Inn eventually led to its closing.

Inspection results from all bases were compiled into an overall survey of Air Force housing, which showed that 86% of families were satisfied with the health and safety of their housing. At Offutt, that figure was 76%, near the bottom of the range that the Air Force called “acceptable.”

Since the mid-1990s, the military has turned over construction and management of much of its family housing to private companies after survey results showed that half of military families were unsatisfied with their housing, much of which dated to the 1940s.

In the Air Force, that meant privatizing or building more than 53,000 homes at 63 military installations, said John Henderson, assistant secretary of the Air Force for installations, environment and energy, at the hearings in February. About 15,000 units are still managed by the Air Force.

The military pays each service member a housing allowance, which in turn is paid to the management company for rent and utilities.

“We sought to leverage private-sector funding and expertise to provide quality housing for our members while shedding a non-war-fighting function,” said Henderson, who lives in Omaha.

Burlington Capital took over Offutt’s housing in 2005. Vaccaro said his company built more than 900 new units between 2007 and 2011, and an additional 500 homes received major renovations.

“We believe we provide very convenient, quality housing for the people at Offutt,” he said.

Frances Spratley, 30, moved into a Rising View house earlier this year with her husband, Frank, who had just left the Army after 12 years of service. Frances said she began suffering from joint pain, headaches, shortness of breath, muscle twitches, brain fog and panic attacks within a few weeks.

She blames her symptoms on basement mold, which they found after moving in in March, during the rains and flooding. Water squirted from the cinder-block walls. Black mold grew in large patches on the floor and walls, she said, showing photos on her cellphone. They found it in the heating ducts, too. Despite cleaning with bleach, the mold returned. Several weeks later, the family moved into a motel at their own expense.

Dissatisfied with the response from Rising View’s management, they broke their lease, threw out their furniture, and spent more than $4,000 — almost all of their savings — to move into a brand-new apartment in northwest Omaha.

“That experience almost ruined my life and put my family in serious financial burden,” Frances Spratley said.

FRANCES SPRATLEY 

Rising View residents Frank and Frances Spratley say water squirted through their basement walls in March and left behind mold.

Chellicee Sheriff moved into a two-story duplex in Rising View three years ago with her husband, Edward, an Offutt airman, and their disabled daughter. She grew frustrated when the air conditioner broke and the repairs were delayed. She said she couldn’t get an expedited replacement, even though overheating could endanger the life of her daughter, who has a serious heart condition.

And she said it took 24 hours for maintenance personnel to respond when the roof of her bedroom developed a large leak — too late to prevent damage to the house and furniture.

“We’re being treated like suboptimal people because we live in government housing,” she said. “There’s no excuse.”

Some residents have posted complaints on the Facebook pages of Rising View and of the 55th Wing commander. Others use a page called “Rising View Rants.”

Dayton and Vaccaro say those voicing complaints represent a small minority. Dayton noted that the house-by-house inspection showed health and safety problems in fewer than 10% of the homes. In many cases, he said, those problems had never been reported.

“We understand it to be very small group of people who are on social media,” Dayton said.

Vaccaro said Rising View maintenance personnel handle more than 1,000 service calls a month. He said that the average response time is three days and that 84% of all requests are completed within five days.

“We certainly take prompt action, in partnership with the (Offutt) housing office,” he said.

Mold reports, in particular, are taken seriously, said Dan Gillis, the installation management chief of Offutt’s civil engineering squadron.

“Both Rising View and the Air Force treat mold reports as emergencies,” he said.

The Air Force’s assessment showed that for the past two years, Burlington Capital has been the lowest-rated among the 10 companies that manage housing for the Air Force and that its rating (on a 1-to-100 scale) has slipped from 89 to 82 since 2016. Above 80 is considered “acceptable.”

Vaccaro attributed the lower rating to the fallout from a pair of tornadoes that struck part of the Rising View community in June 2017. Two weeks later, a major hailstorm hit the same area.

“The storms really put us on our heels,” Vaccaro said. “We’re appreciative of the residents’ patience with the major volume of repair that we had to do over the last two years. As of today, approximately 85% of the homes have new roofs.”

Dayton said the 55th Wing will continue to inspect every house, every year. He said any resident who is unsatisfied with maintenance services at Rising View may contact the base housing office, which oversees the managers, even if the tenants aren’t in the military. He said every resident has been given brochures and refrigerator magnets with the numbers to call.

Marks has also established a Commander’s Action Line for housing-related complaints: 402-294-5666, or by email at 55WG.CCActionLine@us.af.mil.

“We’re acutely aware of the problem,” Dayton said.

Congress is, too. Rep. Don Bacon, R-Neb., is the former commander of the 55th Wing. He said in a statement that several provisions to improve oversight of privatized military housing and to protect military families are included in the 2020 Defense Department authorization bill.

“The Pentagon has acknowledged they took their eye off the ball and are aggressively tackling the problem,” Bacon said.


Local
'How the hell did that escape us?': Bellevue councilwoman casts improper vote on real estate deal

After presenting a real estate deal to the Bellevue City Council in mid-September, Kathy Welch — a real estate agent and sitting councilwoman — then voted in favor of the deal, for which she would receive a commission.

Public officials can’t have a financial interest in contracts with their governing body, according to the Nebraska Accountability and Disclosure Commission, which would suggest that her vote was in violation of state law.

The council plans to take a new vote on the deal at its Tuesday meeting, where Welch is expected to disclose her conflict and abstain from voting.

Welch declined to comment Monday and directed questions to Jim Ristow, Bellevue’s city administrator, who is not an elected official.

“She should have recused herself from the vote, and she didn’t,” Ristow said.

Kathy Welch

Welch’s vote came on an $808,000 purchase agreement for 44 acres of land east of 36th Street along Gilmore Road, where Bellevue wants to build a new Public Works Department facility. One of the department’s buildings was heavily damaged by last spring’s flooding and declared a “total loss,” Ristow said.

The city has been working to find a new site on which to consolidate its Public Works facilities. The total project could cost between $8 million and $10 million, which would be covered by FEMA, Ristow said.

Ristow said Welch had volunteered to find potential properties for the city and to broker a deal between the seller, the Carol J. Gates Trust, and Bellevue.

Near the end of Bellevue’s Sept. 17 City Council meeting, the council went into closed session to hear specifics of the deal from Welch. Cities often enter closed sessions when discussing potential real estate transactions or personnel matters.

The council then went back into open session and voted on the purchase agreement, which passed 6-0.

Ristow characterized Welch’s vote as an accidental oversight. He said those in the room that night — including Ristow, Mayor Rusty Hike, City Attorney Bree Robbins and the city’s five others council members — didn’t realize what had occurred.

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Welch’s vote was brought to the city’s attention the next day. Ristow said he did not know who first noticed the error.

“How the hell did that escape us?” Ristow said of the oversight.

Frank Daley, executive director of the Nebraska Accountability and Disclosure Commission, said the city sought guidance from the commission on how to proceed. He said he advised that the city invalidate the vote, hold it again and ensure that Welch declares her conflict.

Bellevue has been without a designated real estate agent since David Dunn died in 2016, Ristow said. The city is in the process of finding an outside real estate consultant. Welch is not expected to broker future real estate deals with the city.

Welch, a Republican, was elected to the City Council in November 2018.

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