Baltimore opioid trial: Judge limits money damages juries can award

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

Although the trial will continue and other types of monetary damages are still on the table, Baltimore City Circuit Judge Lawrence P. Fletcher-Hill ruled that there is insufficient evidence to support punitive damages against the companies, the reduction of the group of cash jurors will be able to award if they find the distributors legally responsible for the damages that the city has suffered.

The decision is a blow to the city and a victory for the pharmaceutical companies, McKesson and AmerisourceBergen. But it wasn’t entirely unexpected because of Maryland’s high legal standard for punitive damages, which are designed to punish defendants for particularly heinous conduct.

Fletcher-Hill found the city failed to show “actual malice,” the legal requirement for punitive 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 simply being negligent.

The city declined to comment Tuesday because the trial is ongoing. McKesson also declined to comment. AmerisourceBergen had no immediate comment on the decision.

The Baltimore lawsuit claims drug companies ignored regulations requiring them to block suspiciously large orders of opioids and sent large quantities of painkillers to local pharmacy customers that showed clear red flags for drug diversion.

The city argues that the influx of legal opioids being shipped to the Baltimore area reversed the progress Baltimore had made in reducing fatal opioid overdoses and significantly worsened the problem. Baltimore’s overdose death rate from 2018 to 2022 was nearly double that of any other large American city, a Banner/New York Times investigation found this year.

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

Before the drug companies began making their defenses, they asked Fletcher-Hill to find that the city had not presented enough evidence for the case to proceed. This is a standard step when a plaintiff has just presented evidence at trial.

City attorneys countered that they had evidence the companies knew about red flags at troubled pharmacies and either ignored them or failed to act until the damage had already been done.

“We showed intentional efforts to conceal and not report suspicious conduct,” said Cory Buland, a partner at the city’s law firm, Susman Godfrey.

Lawyers pointed to parodic emails about addiction that AmerisoruceBergen’s regulatory team shared internally as further evidence of a “callous” attitude at the company.

Fletcher-Hill rejected the drug companies’ argument that the entire lawsuit should be dismissed at this stage. He agreed, however, that there was insufficient evidence to support punitive damages.

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

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

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

Fletcher-Hill echoed doubts about Tuggle’s methodologies raised by McKesson and AmerisourceBergen in cross-examination. The judge was also sympathetic to the dealers’ argument that they should not be held solely responsible for the huge volume 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.