HOUSTON — There are hundreds of cities and counties involved in the mass opioid litigation being hammered out in Ohio. Pegi Block wishes them the best. But for now, the Houston prosecutor has no interest in joining their effort.
Harris County, where Block is an assistant county attorney, sued opioid manufacturers and drug distributors in December, alleging — like other plaintiffs around the country — that they flooded communities with addictive painkillers while downplaying the risk of the medications. But the county, the country’s third largest, is fighting to keep its case in state court and separate from the so-called multidistrict litigation being overseen by a federal judge in Cleveland.
“The damages were incurred here,” Block said in an interview at the county attorney’s Houston offices. “We believe that our judge, our county, our juries in Harris County not only have the right, but that they should be the ones to decide the fate of this lawsuit. This is where it happened.”
Harris County is one of at least two dozen counties, cities, and towns pursuing cases in state court apart from the national litigation. They are drawn to the local judges and juries in their home courts, experts say, and fear getting lost in the crowd of plaintiffs in the national case, particularly if claims brought by states are eventually going to be considered in a global settlement. But there are risks, too, including a loss of influence in negotiating that potential settlement and a lack of resources to wage a legal battle against deep-pocketed defendants.
Many of the defendants — which include opioid manufacturers, distributors, and pharmacies — would rather wage the battle in one court. But they face an ever-growing legal barrage, as public officials at all levels of government aim to wring money from the companies and show their constituents that they are fighting an addiction crisis killing tens of thousands of people each year. The defendants have generally denied the accusations, noting that they are making and selling medications approved and regulated by the federal government.
In Cleveland, Judge Dan Polster has said he wants to resolve the multidistrict litigation, or MDL, involving hundreds of cities, counties, and tribes this year — an ambitious timeline for such a sprawling tangle of cases. The Trump administration has also filed a “statement of interest” in the litigation, backing up the plaintiffs.
There are many other suits around the country. About a dozen states have filed their own cases, and some Native American tribes have sought to keep cases in state or tribal courts. In Louisiana, an attorney has filed a class-action lawsuit on behalf of children born with neonatal abstinence syndrome, which occurs when babies are exposed to opioids during pregnancy. In Kentucky, two rural health clinics have sued drug makers in federal court. More than 40 state attorneys general are also investigating prescription opioid players but have not filed a suit.
Counties and towns can file in state court if at least some of the defendants are “citizens” of the state. “Generally speaking, counties would prefer to be in state court, but they can only be in state court where there’s a jurisdictional basis to be in state court,” said Paul Hanly, one of the plaintiffs’ attorneys negotiating the MDL, who is also representing Connecticut municipalities and New York counties suing in their respective state courts.
There are strategic issues at play as well, experts say. Suing in state court means local officials are more likely to get familiar judges who know firsthand how a given place has been affected by the opioid crisis. And some officials think they might be able to get ahead of the national litigation — no matter how fast Polster intends to reach a deal — so they can either get a separate settlement or go to trial before a global settlement is reached. Already, a trial date has been set for May 2019 in a state case brought by Oklahoma.
An individual county might also worry that its claims would get drowned out in the sea of the national case. The fact that so many cities and counties have filed suits — and not just states — shows that local officials are trying to protect their own interests, instead of just hoping money allotted to their state gets filtered down to them, said Abbe Gluck, the faculty director of the Solomon Center for Health Law and Policy at Yale.
“The judge’s goal is to achieve a global settlement,” Gluck said. “He wants to resolve the claims in one shot. If I were a county, I might be concerned that the judge wouldn’t consider the individual harms suffered by each county.”
Then again, there is a strength-in-numbers strategy at play in joining the MDL, particularly for smaller counties that might not have the resources to fend off the defense attorneys hired by the drug companies. As part of any global settlement reached in Ohio, the defendants can also try to demand that it end all of the lawsuits, not just the federal ones. (This is why the group of state attorneys general who haven’t sued are still involved in the MDL.) If a county’s case gets roped into the MDL as a settlement nears, then its interests might not be given as much priority as they would have if they’d been there from the beginning.
“They want closure,” Elizabeth Burch of the University of Georgia School of Law said of the defendants. “For their stockholders, being able to announce that they’ve put this to bed is important.”
The overlapping lawsuits have led to some turf skirmishes. In Tennessee, Attorney General Herbert Slatery last week argued that local lawsuits were interfering with his ability to work with the other state attorneys general in negotiating an opioid settlement. Local officials countered that their communities miss out when suits get lumped into one massive settlement.
Here in Texas, the Harris County case was kicked up to federal court in February, and if it remains there, it will likely be absorbed into the MDL. But the county has filed a motion to send the case back to state court, arguing that it belongs there because 10 of the defendants are Texas “citizens.”
Meanwhile, a group of drug distributors — including AmerisourceBergen (ABC), McKesson (MCK), and Cardinal Health (CAH) — is arguing to keep the case in federal court and for it to join the MDL, saying the Harris County case “is substantially identical to the more than 400 federal actions pending nationwide.”
At least two Texas counties, Dallas and Hopkins, have successfully gotten their cases sent back to state court. That means that the 36,000 people of Hopkins County have some chance of taking on opioid distributors and manufacturers themselves.
“There’s certainly no question that we’re dealing with very big companies on the other side that have enormous resources and a bevy of talented lawyers,” said Jeffrey Simon, an attorney at Simon Greenstone Panatier Bartlett, who is representing Hopkins and other Texas counties in their opioid lawsuits. “Time will tell whether Hopkins County is served well enough by little old me and my co-counsel. But we believe that Hopkins County’s claims should be decided in Hopkins County.”