Dayton Mayor Nan Whaley: I Would Encourage Other Cities to Sue

Montgomery County, Ohio, where Dayton is located, has been given a distinction no other jurisdiction in America wants.

As many as 800 people could die from a drug overdose in the county by the end of this year—more than double the 370 logged in 2016, according to the estimates from the county’s coroner’s office. In fact, from January through May of this year alone, the county has already seen 365 deaths. If that pace continues, that would give this area a higher number of overdose deaths per capita than anywhere else in the county.

County Coroner Kent Harshbarger, has likened the scope of the tragedy to a “mass-casualty event.” The city of Dayton hasn’t been spared.

So far this year, Dayton’s law enforcement, fire, and other emergency personnel have already responded to more than 1,800 calls related to suspected overdoses—a remarkable figure for a city of around 140,000 people.

In the first five months of 2017, Dayton’s first responders gave out over 7,600 mgs of Narcan—the overdose-reversing nasal spray. That’s 50 percent more than was used in all of last year.

Dayton Mayor Nan Whaley, who spoke over the phone with Route Fifty earlier this week, said that one of her biggest concerns for her city, and for the state of Ohio as a whole, is that they “haven’t seen the peak of the surge yet.”

And, in many ways, Whaley said, “the cost is becoming unbearable for local communities.”  

In response, the mayor and the city of Dayton have decided to make a relatively unorthodox move. They are suing the companies and individuals they say are jointly responsible for the crisis. And Whaley, who is attending the 85th meeting of the U.S. Conference of Mayors in Miami Beach, Florida, believes that it’s in other city leaders’ best interests to do the same.  

For Whaley, the calculation is relatively simple.

“We saw the cost of dealing with the epidemic in our city,” the mayor said. “And it didn’t seem fair or right … for Dayton taxpayers to cover the cost when they weren’t the ones that started the problem.”

“The heroin epidemic was no accident,” Whaley said in a statement announcing the lawsuit, “it did not just happen, it started with the drug companies.”

Whaley wouldn’t say exactly how much her city spends in response to the addiction crisis—and all the corresponding issues that go with it—because that information will be pertinent as the lawsuit progresses, but she did say the figure is in the millions, at the very least.

This isn’t the first time a state or local government has taken legal action against the pharmaceutical industry over its role in the opioid epidemic—lawsuits have been filed by municipal and state governments in Washington state, West Virginia, Kentucky, and elsewhere.

And, just a week before Dayton announced its suit, Mike DeWine, Ohio’s Republican attorney general filed his own lawsuit—both Whaley, a Democrat, and DeWine have announced their intentions to run for governor, and both officials appear to be planning to make the opioid epidemic a central pillar of their respective campaigns.

But, Dayton’s lawsuit is relatively more comprehensive than many of these other cases—and the mayor has said publicly that she doesn’t think the attorney general’s lawsuit goes far enough.

What’s in the Lawsuit?

Unlike the state’s lawsuit, which names five prescription opioid manufacturers, or other ongoing cases—like that of the Cherokee Nation that instead targets drug distributors and retailers—Dayton has chosen to try to hold a trio of stakeholders to account.

The Dayton lawsuit names 23 defendants. Among them are five primary drug manufacturers and their various subsidiaries—including Purdue Pharma, which produces OxyContin, a drug that constitutes roughly 30 percent of the entire market share of prescription painkillers. The lawsuit also names three of the country’s top pharmaceutical distributors: McKesson Corporation, Cardinal Health and Amerisource Drug Corporation. And, notably the lawsuit also lists four prominent pain physicians as defendants.

The complaint, which was filed on June 5, contends that the drug makers understood the risks of the products they were selling and purposefully undertook a “sophisticated” and “deceptive” marketing strategy that ‘tainted virtually every source doctors could rely on for information.” In short, the charge is that these companies knew that there was no evidence these drugs were effective at controlling non-terminal chronic pain in the long-term. And on top of that they knew the drugs were addictive and dangerous. But they aggressively pushed them anyway.

Once such marketing campaign cited by the lawsuit specifically targeted veterans. A 2009 publication called Exit Wounds which was sponsored by Purdue and distributed with grants from Janssen and Endo, two other drug companies, was written as a personal narrative from the point of view of one veteran and described opioids as “underused” and the “gold standard of pain medications.” Exit Wounds, however, fails to mention the risk of addiction or overdose and says nothing about the fatal interactions opioids may have with benzodiazepines, which were frequently prescribed to veterans with post-traumatic stress disorder.

The lawsuit also alleges that the four doctors named as defendants were instrumental in this marketing strategy. These doctors served as spokespeople for these pharmaceutical companies in the form of lucrative speaking engagements and media appearances; and authored papers on the supposed benefits of these drugs in addressing non-malignant chronic pain, all while downplaying the risk of addiction.

These doctors even at one point helped push the concept of “pseudoaddiction,” the idea that doctors should see addictive behaviors—a patient’s requests for more pills, or taking painkillers in ways not recommended by their physician—not as warning signs, but as an indication that the patient's’ pain was being undertreated. Their advice to other doctors in these cases was to increase the dosage.  

And, the complaint claims that the three distributors, the middlemen between drug manufacturers and pharmacies, failed in their duty to report the suspicious levels of prescription opioids that poured into the city—the amount of pills being shipped in steadily increased even as the number of pain patients remained constant.

Two pharmaceutical companies that were also named in Dayton’s lawsuit have responded to the complaint filed by DeWine, which rests on similar arguments that the industry engaged in intentionally misleading marketing.

Purdue Pharma said, “we share the attorney general’s concerns about the opioid crisis, and we are committed to working collaboratively to find solutions." And Janssen said, “we firmly believe the allegations in this lawsuit are both legally and factually unfounded,” adding, “Janssen has acted appropriately, responsibly and in the best interest of patients,” according to National Public Radio.

Mayor Whaley’s Message

While the lawsuit is still in its early stages, Whaley has already become a bit of an evangelist for this course of action.

The mayor wasn’t initially aware of the other cities that had gone down this path until the day the lawsuit was filed. That day she did a Google search and found references to other cities like Everett, Washington, and Kermit, West Virginia—jurisdictions that have taken on drug companies and distributors as well. But, now that Dayton has joined their ranks, Whaley is bringing a message to other city leaders around Ohio and around the country.

On the tail of Dayton’s lawsuit, leaders in Lorain, Ohio, near Cleveland, are considering their own complaint. Whaley said that Cincinnati, Columbus, Akron, Parma and other cities in Ohio might not be too far behind. Whaley has made a presentation on the lawsuit to the leadership of those cities through the Ohio Mayor’s Alliance, and now she’ll be bringing her message to the mayors gathering Miami Beach.

According to Whaley, “It’s not a hard decision for cities to make … because the cost is so much for the communities. And most people who think this should be on the back of the taxpayers are those that caused the problem.”

“We really want to hold everybody accountable that we think is responsible for causing this epidemic,” Whaley said.  

“Frankly,” the mayor added, “I would encourage others to do the same.”

Whaley sees the lawsuit as going hand-in-hand with her broader strategy of using innovation to combat the drug epidemic. The mayor points out that Dayton was one of the first cities—if not the first—to declare a state of emergency. She also said that Dayton was one of the first to ensure that first responders were carrying Narcan, and that under her watch the city has undertaken a needle exchange program. But all of that costs money, and the money that’s being funneled to the epidemic is money that won’t be spent on other city services.

And, Whaley points out, the city’s cost of dealing with the crisis may increase depending on changes to Medicaid built into the federal health care bill making its way through the U.S. Senate. Whaley described the American Health Care Act legislation pushed by Republicans on Capitol Hill as potentially having a “devastating effect on our ability to get folks into treatment.”

But, despite the challenges, Whaley said she has no choice but to keep the city moving toward an end of the crisis, even when there’s no end in sight.

“When something like this happens it’s almost the equivalent of a natural disaster in your community that’s happened over a period of time,” Whaley said. “You have to be as innovative as possible to help your community.” And for the mayor, part of that innovation means looking for new ways to fund solutions to the crisis—the lawsuit, ideally being one of those sources of financing in the future.  

To Whaley, this is the definition of city leadership.

“When you’re the mayor of a city you don’t have the luxury of looking away or saying this isn’t my problem.”