AG Rutledge loses ‘writ of mandamus’ request, second opioid lawsuit may proceed with ‘state actor’

The state Supreme Court on Friday (April 6) declined Arkansas Attorney General Leslie Rutledge’s request to remove Scott Ellington, prosecuting attorney for the 2nd Judicial District of Arkansas, from a lawsuit filed in Crittenden County against opioid makers.

In dueling legal actions filed in two Arkansas circuit courts over the past month, Rutledge and Ellington made known their intentions to take the drug industry to court over a growing number of fatalities that have coincided with the rising sales of prescription opioids in Arkansas and the U.S.

Rutledge’s office filed an emergency “writ of mandamus” petition on April 2, arguing that Ellington should not be permitted to bring claims on behalf of the state in the fight that could possibly win damages of hundreds of millions of dollars. Gov. Asa Hutchinson has said any judgment or settlement could be used to reimburse the state for lost money.

Ellington is a plaintiff in a lawsuit filed March 19 in Crittenden County. That claim was filed by Arkansas-based Rainwater, Holt & Sexton; Reddick Moss of Little Rock; Wyly-Rommel of Texarkana, Texas; and Birmingham-based Cory Watson Attorneys, on behalf of the Arkansas Municipal League (AML) and the Arkansas Association of Counties (AAC.)

In Friday’s brief one-sentence ruling, the high court stated that the “petitioner’s emergency petition for writ of mandamus is denied.”

Ellington’s lawsuit involves 72 Arkansas counties and 210 cities – the only counties not participating are Drew, Jefferson and Pulaski. Ellington told Talk Business & Politics the lawsuit needed a “state actor” to prevent defendants from attempting to have the case consolidated with a multi-state, multi-party case now presided over by U.S. District Judge Dan Polster with the Northern District of Ohio.

Following the state Supreme Court decision late Friday afternoon, the coalition represented by the two large Arkansas associations that include mayors, county judges and other city and county officials from across the state express gratitude will continue to pursue the case on behalf of the state. In a new release, the group estimated it cost the state billions to address the Arkansas opioid epidemic, saying money should come from the companies that caused the problem instead of taxpayers.

“We had the utmost faith that the Arkansas Supreme Court would see the wisdom of the prosecutor’s, … legal argument,” said Chris Villines, executive director of the Association of Arkansas Counties. “We fully believe what these counties and cities are doing on behalf of their communities is right and just.”

Added Don Zimmerman, executive director of the Arkansas Municipal League: “We know we can work out a solution together, and we again extend our invitation to the Attorney General to join our efforts to bring Opioid Justice for a United Arkansas.”

The AAC and AML lawsuits filed in the Circuit Court of Crittenden County targets 65 defendants, including manufacturers, three wholesale distributors who control the market, five retail operations and five physician defendants. The complaint seeks a jury trial. Outside counsel will be awarded 21% of the judgment, according to Jerome Tapley with the Cory Watson firm.

Rutledge on March 29 filed a lawsuit in Pulaski County Circuit Court against opioid manufacturers Purdue Pharma, Johnson & Johnson and Endo. The companies make drugs such as OxyContin and hydrocodone. Rutledge along with Gov. Asa Hutchinson made their announcement next to a geographic representation of Arkansas composed of 401 prescription pill containers representing the 401 Arkansans who died of drug overdoses in 2016. Of those, 331 were opioid-related. Since 2000, the state has seen a more than 600% increase in drug overdoses.

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, noted the filing in Crittenden County. Arkansas has the second highest opioid prescription rate in the country – 114.6 for every 100 people.

Rutledge also alleges defendants violated the Arkansas Deceptive Trade Practices Act by convincing doctors and patients the addictive drugs were safe for chronic pain.

Rutledge’s office issued the following statement Friday afternoon: “While Attorney General Rutledge is disappointed in the Arkansas Supreme Court’s decision, she will not seek further relief on this issue at this time. She is hopeful both lawsuits will be successful to help Arkansans. The Supreme Court’s one sentence denial provided no explanation as to whether the Court interpreted the law to allow a single prosecutor to bring these claims on behalf of the State or whether the Court simply determined that this action should have been brought before the Circuit Court in Crittenden County first rather than immediately seeking relief from the State’s high court.

“The Attorney General has spent months working on this issue and will continue to aggressively pursue her case in Pulaski County. Per State law in Ark. Code Ann. 20-77-902, only the Attorney General, not a local prosecutor, can file claims alleging violations of the Medicaid Fraud False Claims Act and only she can bring those in Pulaski County or a county where one of the defendants resides, according to Ark. Code Ann. 20-77-908. Because none of the opioid manufacturers reside in Crittenden County, the Attorney General is not willing to forego potentially tens of millions of dollars in possible relief that could be used to help Arkansans. Scott Ellington, proceeding on behalf of the State in the Crittenden County lawsuit, could cost taxpayers tens of millions of dollars since he cannot bring these Medicaid claims as a local prosecutor and those claims cannot be brought in Crittenden County.

“The Attorney General hopes that both lawsuits are successful in holding those responsible for the opioid crisis accountable and to provide much needed resources to the cities, counties and state to combat it.”