Some of you may have read about a large lawsuit being brought against the manufacturers of opioid prescription drugs by many localities throughout the country. In our neck of the woods, Smyth, Wythe, and Russell counties have joined and their lawyers have attempted to add Pulaski County to their client list. I’ll attempt to explain the mechanics of the lawsuit (claims, structure, etc) and what benefits or costs may accrue to Pulaski in joining in the lawsuit. Generally speaking, when discussing the below, I am referring to the Multi-District Litigation (MDL) being contested in the Northern District of Ohio federal court though some localities have brought suit in state courts. When many lawsuits are brought around the same issue (think tobacco litigation or claims around side-effects of other drugs like Vioxx) the federal court system has a mechanism to consolidate the cases into one court before one judge. This allows for a single set of evidentiary discovery, pre-trial motions, and potential settlement. It sounds much like a class action lawsuit, but it is procedurally distinct in ways that normally do not matter except to lawyers. I’ll try to tease out some of the important points below and not get lost in the weeds, though sometimes in the law the weeds are where cases are lost and won.
Plaintiffs- Hundreds or potentially thousands of cities and counties in the United States.
Defendants- Opioid Drug Manufacturers, Drug Distributors, Chain Pharmacies, and Physicians (for now).
Plaintiffs allege, but have not yet proven, that the Defendants were required under federal law to monitor the sale of certain opioid drugs in order to prevent the abuse of those drugs through excessive sales. Many people may be familiar with articles that showed a single town in Mingo County, WV received over 20 million pills of powerful opioids, and only had a population of 2,900 and two pharmacies. There are many other stories like this where massive shipments of prescription drugs were sent to small pharmacies in areas which are now ravaged with opioid addictions. The Plaintiffs allege that Drug Manufacturers, Distributors, Pharmacies and Physicians were negligent in their monitoring and helped to push drug abuse, addiction and overdose levels to multi-decade high levels. They seek damages to offset increased expenses for municipal costs such as Medicaid payments, law enforcement expenses related to drug abuse, expenses paid to regional jails, and others that can be proven.
Individual Plaintiffs (cities, counties and states) brought lawsuits in their local federal district court (we are in the Western District of Virginia). The case, along with many others, is transferred to the Northern District of Ohio before Judge Dan Polster for consolidated discovery of documents and depositions, pre-trial motions and potential settlement. Unlike with a class action, unless you filed a lawsuit, you are not included in this process. Pulaski County would not receive one of those postcards notifying it of a settlement unless it filed its own lawsuit. The MDL court will assess the claims by the relevant parties and begin to determine how they may proceed administratively. Currently, there are settlement negotiations ongoing in the MDL court. Part of the decisions made is to determine how the numerous plaintiffs will be represented before the court. The judge in the case will either assign one plaintiffs’ lead counsel, or create a group. Crucially, unless settlement is reached, following the conclusion of pre-trial motions, discovery of evidence, and perhaps the litigation of a test case, the case should be transferred back to our local federal district court for a full trial on the merits.
That’s why Ben Chafin and Ben Campbell sought time with the Pulaski County Board of Supervisors on April 23. While they both are elected officials in the state legislature, they were appearing in their capacity as private attorneys seeking a client. While Mr. Chafin and Mr. Campbell spoke before the Board of Supervisors, it is likely that the law firms they have associated with, in particular Wagstaff and Cartmell of Kansas City, will do much of the heavy work before the MDL court. Typically in MDL litigation much of the work of drafting, document review, argument, and settlement negotiations is conducted by lead plaintiffs’ counsel. Therefore, those lead plaintiffs’ counsel guide the litigation, make many crucial decisions about how to proceed, and therefore often receive an extra allocation of fees. Firms with extensive litigation experience (such as Wagstaff and Cartmell) are often designated lead counsel, but attorneys who represent large numbers of plaintiffs are also included.
Pulaski County could also bring a lawsuit in Virginia state courts. By doing so, it would likely not avail itself of the full range of defendants available in the MDL, but would have significantly more control over the proceedings. It would also run the far higher risk of losing, or seeing a larger portion of any settlement or award taken up by fees and costs. I assure you that this type of litigation is very expensive for both sides, and any law firm willing to take it on would expend (and expect) significant money. This is an unfortunate reality of our legal system, and the partially the result of so-called “tort reform” bills often touted by conservative politicians.
No one doubts that the opioid epidemic has damaged our community and that we are collectively entitled to seek some compensation. While the Pulaski County Board of Supervisors has indicated a willingness to join the litigation in their last meeting on May 21, 2018, I believe that there are some unanswered questions regarding how the litigation will proceed and how it will be monitored.
- Has the County done an analysis of potential damages? Part of the process of any settlement negotiation or determining damages awarded is coming up with some numbers to back up your claims. This would have to be at least started by the county. At the last meeting, Mr. McCready stated that the “potential for Pulaski County to recover funds is great, and the amount of those funds could be substantial.” But how many ambulance calls are related to opioid overdoses, how many days in jail, how many public assistance dollars are assigned to dealing with the aftermath? We don’t need an exact figure, or even an enormous amount of time or money spent on this, but we should make an effort to see what exactly we could demand in terms of restitution before signing a contract to retain any law firm.
- Has the County consulted with its legal counsel to determine if joining the federal litigation or seeking a remedy in state court has been examined? The lawyers who presented in April are suing in federal court to join the MDL, but the state option remains for Pulaski. Regardless of the decision made, our citizens are owed an explanation of that decision. As fiduciaries of not just our tax dollars, but also our communal legal claims we are entitled to that transparency. Certainly, as I explained above, there are reasons to join suit in federal court but many other counties from Dickenson here in Virginia to New York City are filing suit in state courts. We should understand the different choices we have, as we’ll likely be unable to change our mind after filing suit.
- Has the Board of Supervisors interviewed other law firms, particularly those with extensive products liability experience? Mr. Chafin and Mr. Campbell are certainly experienced attorneys, but according to their websites neither in product liability nor in complex litigation. It would behoove Pulaski County to interview several firms to be sure that we have the right representation. Mr. Kirtner stated that Wagstaff and Cartmell had dropped their contigency fee from 33% to 25%, and had agreed to a more beneficial expense arrangement. Perhaps another firm would be willing to absorb expenses entirely, but we’ll never know if we do not ask.
- How will any lawyers be supervised? Pulaski County is not an individual client, so how would the county deal with the day-to-day decisions that might need to be made? Normally, a lawyer has great discretion about how a case might proceed but the client always makes key decisions like whether the settle. Would the full Board have to vote on any settlement, especially if it is part of a larger MDL proceeding? How would they handle the more mundane decisions about how the lawyers might respond to document requests from defendants, who may be required to be deposed, and other intermediate matters?
- How would any money be spent? The County would likely not be legally required to spend the money in any particular way; it could even be used to pay down existing debt obligations. However, I believe that public support for the litigation would be increased if the County committed to spending the money in order to assist those most impacted by the opioid addiction- whether that is treatment options for those addicted, support services for family members, or increased education for the community on addiction issues depends on the amount and timing of any recovery.
While the Board of Supervisors is well within its authority to choose both to bring suit and to hire a firm that will be paid for doing so, it will build greater trust in our community if the reasons for doing so, including any alternatives that may be foreclosed, are openly and fully discussed. No amount of money will compensate those whose lives have been damaged, but if this money can help those people rebuild their lives it will certainly be worth the effort.