An attorney representing Arkansas’ cities and counties in a lawsuit against opioid manufacturers says the plaintiffs probably would need to recover “somewhere in the billions” to help pay for the cost of the epidemic.
Four law firms have been hired as outside counsel: Arkansas-based Rainwater, Holt & Sexton; Reddick Moss out of Little Rock; Wyly-Rommel out of Texarkana, Texas; and Birmingham-based Cory Watson Attorneys. Outside counsel will be awarded 21% of the judgment, according to Jerome Tapley with the Cory Watson firm.
Tapley said the plaintiffs are still trying to determine the costs they are trying to recover.
“We’re still working on it,” he said. “I will tell you that at least preliminarily, it looks like a number that’s probably going to rest somewhere in the billions, and so it’s a large burden for taxpayers if we’re not successful here.”
Filed in the Circuit Court of Crittenden County on March 19, the complaint involves 72 Arkansas counties and 210 cities – the only counties not participating being Pulaski, Jefferson and Drew. The state of Arkansas is a plaintiff through Scott Ellington, 2nd Judicial Circuit prosecuting attorney.
The lawsuit involves 65 defendants, including manufacturers, three wholesale distributors who control the market, five retail operations and five physician defendants. The complaint seeks a jury trial.
Tapley said the defendants were chosen because they were the most at fault for creating the opioid crisis, and the ones that were involved in adverse actions by the state and federal governments. As far as the timeline, Tapley said the attorneys will start litigating with hopes of obtaining a settlement or judgment in “two or less” years.
“I would say that the vast majority of cases settle, but that doesn’t determine whether a particular case settles,” he said.
The complaint arises as Arkansas and the entire country are dealing with a growing opioid crisis. According to the Centers for Disease Control and Prevention, more than 200,000 people in the United States died from overdoses related to prescription drugs from 1999 to 2016. According to numbers from the Arkansas Department of Health, 401 Arkansans died of a drug overdose in 2016, and 331 were opioid-related. At the same time, opioid sales in Arkansas have quadrupled from 2000 and 2015, the complaint says. Arkansas has the second highest opioid prescription rate in the country – 114.6 for every 100 people.
The complaint says opioids are highly addictive. The drugs have led to societal costs related to drug abuse, overdoses, pregnancy complications, and an increase in the number of foster children.
The complaint also alleges the opioid epidemic “emerges from a conspiracy of greed.” Manufacturers engaged in a “marketing scheme” involving “false and deceptive statements.” They allegedly sought to persuade medical professionals to prescribe opioid drugs for chronic pain that traditionally have been used to treat short-term acute pain, cancer and end-of-life care. Meanwhile, they minimized the risks.
The case will be built on the charge that the manufacturers marketed the drugs in ways that would create the addicts from which they would profit, Tapley said. He said many governments now are regulating the drugs so that prescriptions can only be filled for seven days. The industry norm was 90 days, which would almost guarantee the creation of an addict, he said.
“We believe they should have known that and in fact may have absolutely known that,” Tapley said.
Among the defendants is Purdue Pharma, which the complaint says spent $108 million in 2014 on direct sales to doctors. John Puskar, director, public affairs for Purdue Pharma, released the following statement: “We are deeply troubled by the prescription and illicit opioid abuse crisis, and we are dedicated to being part of the solution. As a company grounded in science, we must balance patient access to FDA-approved medicines, while working collaboratively to solve this public health challenge. Although our products account for less than 2% of the total opioid prescriptions, as a company, we’ve distributed the CDC Guideline for Prescribing Opioids for Chronic Pain, developed three of the first four FDA-approved opioid medications with abuse-deterrent properties and partner with law enforcement to ensure access to naloxone. We vigorously deny these allegations and look forward to the opportunity to present our defense.”
Naloxone is a drug that can quickly reverse some of the effects of an opioid overdose in an emergency situation.
Chris Villines, executive director of the Association of Arkansas Counties, said the effort began last fall when private attorney Mike Rainwater with the Rainwater, Holt & Sexton firm approached his organization and suggested cities and counties join forces because they are responsible for the costs of dealing with the epidemic.
“It has been unprecedented, and to my knowledge nobody else in the country has banded together like we have,” he said.
Villines and Don Zimmerman, executive director of the Arkansas Municipal League, said both organizations believed they needed legal teams with experience in this kind of litigation. Tapley said Cory Watson Attorneys does predominantly pharmaceutical litigation and has experience in representing public entities. He said on a nationwide level, public entities are hiring outside law firms for these kinds of cases.
“Nobody in-house has the experience to handle these cases,” he said.
Tapley said there are similarities and differences with the $246 billion settlement by tobacco companies and states in 1998. The big difference is that with tobacco, costs were primarily borne at the state level, while with the opioid epidemic, the costs are highest at the local level involving first responders, law enforcement and city and county jails.
“It’s a similar case, but it’s sort of flipped upside down. … I think it ultimately will resolve in a similar way but in order for it to be just and to make a difference and for us to accomplish the goal of remediating the opioid epidemic, the large majority of the recovery has to flow to counties and cities rather than the state this time around,” he said.
Attorney General Leslie Rutledge is investigating the pharmaceutical industry. Tapley said the plaintiffs have had some discussions with her office, but their efforts now are separate.