Baltimore opioid trial: Judge limits monetary damages that jurors can award

Jurors in the Baltimore trial against opioid distributors will not be able to award damages if they find the drug companies responsible for the city’s addiction and overdose crisis, a judge ruled Tuesday.

While the trial will continue and other forms of monetary damages are still on the table, Baltimore City Circuit Judge Lawrence P. Fletcher-Hill decided that there is not enough evidence to support punitive damages against the companies, leaving the pool of cash jurors could become smaller. if they believe that the distributors are legally responsible for the damage the city has suffered.

The decision is a blow to the city and a victory for pharmaceutical companies McKesson and AmerisourceBergen. But this was not entirely unexpected because of Maryland’s high statutory standard for punitive damages, which is intended to punish defendants for particularly egregious conduct.

Fletcher-Hill found that the city failed to show “actual malice,” the legal requirement for damages. In other words, the city had to show that McKesson and AmerisourceBergen intended to cause harm when they shipped millions of opioids to the Baltimore area, rather than were merely negligent.

The city declined to comment Tuesday because the lawsuit is ongoing. McKesson also declined to comment. AmerisourceBergen did not immediately comment on the decision.

The Baltimore lawsuit alleges that the drug companies ignored regulations requiring them to block suspected large orders of opioids and sent large quantities of painkillers to local pharmacy customers that showed clear warning signs of drug diversion.

The city claims that the influx of legal opioids shipped into the Baltimore region reversed the progress Baltimore had made in reducing fatal opioid overdoses and significantly worsened the problem. Baltimore’s overdose death rate was nearly double that of any other major U.S. city between 2018 and 2022, a Banner/New York Times investigation found this year.

City attorneys rested Monday after submitting evidence for about a month.

Before the drug companies began defending themselves, they asked Fletcher-Hill to find that the city had not presented enough evidence to pursue the case. That’s a standard step when a plaintiff finishes presenting evidence at trial.

City attorneys countered that they had evidence that the companies were aware of warning signs at problem pharmacies and ignored them or failed to act until the damage was already done.

“We have deliberately tried to hide and not report suspicious behavior,” said Cory Buland, partner at the city’s outside law firm Susman Godfrey.

The lawyers pointed to parody emails about addiction that AmerisourceBergen’s regulatory team shared internally as further evidence of an attitude of “callousness” at the company.

Fletcher-Hill rejected the drug companies’ argument that the entire lawsuit should be dismissed at this stage. However, he agreed there was not enough evidence to justify damages.

While there is evidence that the drug distributors’ systems for monitoring suspicious orders of controlled substances may have been inadequate, the judge said, this does not meet the standard of “actual malice.”

Jurors will still be able to award compensatory damages, designed to cover specific losses, if they find the companies liable. In this case, that could include millions of dollars the city has spent addressing the opioid crisis.

Fletcher-Hill also expressed skepticism Tuesday about other aspects of the city’s case, including the testimony of a key expert witness, Gary Tuggle. Tuggle, a DEA veteran and former interim commissioner of the Baltimore Police Department, used federal drug sales data to identify hundreds of thousands of orders he deemed “suspicious” that had been sent to pharmacies in Baltimore.

Fletcher-Hill reiterated doubts about Tuggle’s methodologies raised on cross-examination by McKesson and AmerisourceBergen. The judge also was sympathetic to the distributors’ argument that they should not be held solely responsible for the massive amount of opioids flooding Baltimore because doctors across the country were prescribing painkillers at an unprecedented rate during the same period.

Testimony in the case will resume Thursday as the drug companies continue to present evidence.