With a nationwide prescription opioid lawsuit scheduled for trial in two months, attorneys for newborns suffering from exposure to opioids in the womb have made a last-ditch plea for special legal treatment for the infants and their guardians.
Lawyers representing a group that may number more than 250,000 children have spent much of the past two years seeking a separate trial against drug companies but have been rebuffed twice by the judge who oversees the sprawling legal case. The children are still included in that lawsuit, along with about 2,000 other plaintiffs, against some two dozen defendants from the pharmaceutical industry.
The children's lawyers also have complained that attorneys for cities and counties spearheading the lawsuit have refused to let them take part in settlement negotiations that are occurring as the trial date approaches.
The lawyers, from 20 firms that represent children across the country, insist that a settlement or verdict must yield billions of dollars specifically earmarked for years-long monitoring of the physical and mental health of children born with "neonatal abstinence syndrome." That is the formal name for the cluster of difficult symptoms endured by babies who undergo withdrawal from opioids in the days after birth.
Without that guarantee, the lawyers contend, cities and towns are likely to spend any money they receive from drug companies on more pressing and popular needs, as some states did with windfalls from the $206 billion settlement with tobacco companies two decades ago.
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"Our goal is to make sure that we do not have a tobacco-style settlement, where all of the money goes to the governmental entities and there's not a significant trust set aside to help these children," said Stuart Smith, one of the lawyers representing the families.
About 2,000 plaintiffs, most of them cities and counties, have sued about two dozen drug companies over culpability for the prescription opioid epidemic, which has killed about 200,000 people in two decades. The cases, originally filed all over the country, were consolidated in a Cleveland federal court, where Judge Dan Aaron Polster is overseeing them all.
Polster has encouraged the hundreds of lawyers involved to work out a mass settlement that helps pay for treatment, emergency care and other costs of stopping the epidemic. If that does not happen, a test-case trial involving just two Ohio counties, Cuyahoga and Summit, would begin in October.
Separately, nearly every state has sued drug companies in their own courts, reasoning that they have the advantage there. A verdict in the first of those trials, between the state of Oklahoma and the health-care conglomerate Johnson & Johnson, is expected Monday.
In December, Polster rejected a request for a separate "track," or trial, for the neonatal abstinence syndrome children, a status he has given to Native American tribes. He instructed their attorneys to instead meet with top plaintiff lawyers from cities and counties "to address how [the children's] needs might be more adequately addressed."
Attorneys for the cities, counties and other groups issued a statement at the time supporting Polster's decision. "Judge Polster decided not to create this separate track and we believe his decision was correct," they said. "Communities in every part of this country continue to lose lives every day, and while each of those communities is unique and has its own separate claim, this litigation is the most effective path towards accountability."
In July, the lawyers for the cities and counties also submitted consultants' reports that name pregnant women and newborns as a "special population" of people affected by opioids that would be aided by money from any verdict or settlement - signaling that they are including those groups in their overall strategy. They estimated that those two groups alone would need $10.7 billion over 10 years to remedy the damage caused by mothers' opioid use.
Now, with time running out, the attorneys for the children filed a motion Monday asking for a delay to review 130 million pages of documents and other data that they said they were prevented from viewing until last month. Their goal is to certify the infants as a class later this year and bring a class-action suit against drug companies under the auspices of Polster and the larger litigation.
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An estimated 32,000 babies were born with the withdrawal syndrome in 2014 - about one every 15 minutes, according to the National Institute on Drug Abuse. That is a more than fivefold increase from 2004.
The infants are prone to low birth weights and suffer trembling, irritability, gastrointestinal problems and sleep dysfunction, among other symptoms. They can have seizures unless they are carefully weaned off drugs by health-care providers.
Research on the long-term effects of that experience is limited, but some experts are concerned that the children will suffer cognitive, developmental and behavioral problems from the effects of exposure to opioids and withdrawal. The babies' attorneys have presented opinions from experts suggesting that opioids are harmful to developing fetuses.
The track record of states that received money from the tobacco settlement is at the core of the concerns expressed by the infants' attorneys. In December, a coalition of health-care groups reported that states were using only a small portion of their annual payment from the tobacco case settlement to fund smoking prevention and cessation programs. The states were set to receive $9 billion from the settlement in 2019 and planned to spend $655 million on those programs, according to the health groups.
Smith, the lawyer, said he fears a similar outcome if the courts don't find some way to dedicate funds for children born with the withdrawal syndrome.
"Who is going to take care of these children? How are they going to get the educational, medical and psychological care they need, and who's going to pay for it?" he asked.
This article was written by Lenny Bernstein, a reporter for The Washington Post.
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