County lawsuits on opioids reminiscent of tobacco lawsuits

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By hammadiqbaldar with Flickr Creative Commons License

By Jo Martin

For MarylandReporter.com

Five Maryland counties, Baltimore City, and possibly the state, are suing manufacturers and distributors of addictive painkillers for their roles in creating  the opioid epidemic that has hit Maryland  particularly hard. Other jurisdictions are likely to follow.

Legal action is at the top of Gov. Larry Hogan’s 2018 tactics for getting a handle on the crisis. He directed Attorney General Brian Frosh to initiate a lawsuit, but in a continuation of their public tiff, Frosh said he was planning to do so but cannot proceed because the governor denied funding for additional staff.

Baltimore City and Anne Arundel, Baltimore, Cecil, Harford, and Montgomery counties claim the pharmaceutical industry expedited the epidemic by hiding or minimizing addiction risks yet aggressively marketed their products to the public and medical professionals. The counties are requesting financial relief for their costs of responding.

As many as 200 U.S. cities and counties have filed or plan to file so far.

The David versus Goliath tactic is reminiscent of the 1990s when every state joined a suit against the tobacco industry. The $246 billion settlement against 13 corporations was reached after four years of maneuvering. The payout, which will continue as long as cigarettes are sold in this country, is divided according to a complex formula. Maryland has received roughly $160 million annually for a total of  $2.5 billion thus far.

As with the tobacco settlement, jurisdictions filing opioid-related suits use staff or local attorneys to work with national firms experienced in high-stakes class actions. Generally, there are no fees unless a settlement is reached, at which point the outside firms take up to 48% of the award.

Local actions

Here is a rundown of local actions so far. In parenthesis are third quarter 2017 opioid-related intoxication deaths from the Maryland Behavioral Health Administration.

Anne Arundel County (145 deaths) went first when it filed on Jan. 3 in county circuit court. The suit names some of the largest addictive painkiller producers as well as local physicians and practices but does not request specific damages. The Washington, D.C., office of California-based Motley Rice has been retained. The firm’s co-founder, Joe Rice, worked on the tobacco settlement.  

Baltimore City (523 deaths) filed its suit Jan. 31 in Baltimore Circuit Court. It names five drug makers, three distributors, and two physicians running pain clinics in Towson and Owings MIlls. City Solicitor Andre Davis, a former federal judge, will be active throughout the litigation. The city asks the court to order defendants to change the way they do business. Davis said any financial award will go toward the mounting costs of policing and health care.

Baltimore County (238) Jan. 8 announced its intention to file in federal district court and will seek consolidation for trial. The counsel of record is Robbins Geller Rudman & Dowd, which represents cities and counties in Michigan, Florida, and Arizona in opioid suits. Robbins Geller also is retained by Montgomery County.

The firm calls itself “Gladiators of the Courtroom” and posts images of the Roman Coliseum on its web site. Local counsel is Silverman, Thompson, Slutkin & White. The county council was scheduled to vote on the suit Monday night.

Cecil County (43 deaths) filed in federal court on Jan. 5. Primary counsel is the Dallas-based firm Baron & Budd, known for aggressive class action litigation. The suit names 20 manufacturers and three distributors and invokes the federal Violations of Racketeering Influenced and Corrupt Organizations Act (RICO) for failing to maintain controls against diverting drugs for illegal use.  

On Jan. 9, Harford County executive Barry Glassman instructed the legal department to draw up requests for proposals for outside counsel. A county spokesperson said Harford will not join a class action suit.

Montgomery County announced its selection of Robbins Geller Rudman & Dowd on December 12. Next steps have not been announced.

The Columbia Flier/Baltimore Sun reported Monday that Howard County is interviewing lawyers to pursue its own lawsuit.

Big guns, big money, and a big oversight

In 1994, a colleague dared Mississippi Attorney General Mike Moore to take on the tobacco industry. Detractors called it a suicide mission, but he couldn’t resist. As attorney general, Moore advanced the unprecedented strategy to hold multi-billion companies, like Philip Morris and R. J. Reynolds, liable for the large-scale damage their products cause.

Mississippi was the first state to file. Other attorneys general were encouraged, and Moore eventually was the organizer and primary negotiator in the suit that involved every state and enough big guns and consultants to fill a corporate business center.

Afterward, Mike Moore left public service and formed a private practice in Jackson, Miss.

The fact that he has met with at least 30 attorneys general in the last year and is forming another legal team, including pals from the tobacco suit and experts  familiar with the pharmaceutical industry, is perhaps the clearest indication that something big is coming.

Moore has said, “Litigation is a blunt instrument; it’s not a surgical tool. But it provokes interest quicker than anything I’ve ever seen.”

He acknowledges that a flaw in the tobacco settlement is shaping the opioid litigations. In 1998, the plan was for states to share payouts with local jurisdictions, but that did not happen. The money went into state coffers, and that’s where it stayed.

This time around, plaintiffs primarily are cities and counties who want to engage directly with manufacturers and distributors. And Moore’s group is not the only  class action option. Others are forming by court mandate and aggressive marketing.

Chicago, NYC, West Virginia and others

The city of Chicago filed the first opioid-related suit in 2014, and it continues to move forward slowly, thanks to lengthy challenges by defendants. New York City filed the latest suit at the end of January, asking for $500 million.

Two years ago, West Virginia reached a $40 million settlement with 14 drug distributors for flooding rural areas with addictive painkillers. Other jurisdictions there are preparing their own legal actions.

Arkansas counties are moving forward after county judges voted unanimously to support litigation. In the mix are 37 counties in Kentucky; 29 in Wisconsin; Salt Lake County, Utah; York County, Pa.; and Seattle, Indianapolis, and Cincinnati.

From January through September 2017, Maryland’s Behavioral Health Administration recorded 1,501 opioid-related deaths, compared to 1,344 for the same period the year before. Total overdose fatalities in 2016 were 2,089.

Federal statistics show about 80% of people who abuse opioid painkillers switch to cheaper and more available street drugs, particularly heroin.

While this pattern seems to be leveling, fentanyl and carfentanil alone or in combinations are seen more frequently than at any other time. The annual cost to the nation is close to $500 billion, according the federal statistics released in November.