Next week, Columbus attorney Corky Smith — along with thousands of other lawyers across the country — will be keeping a close eye on opiate litigation that begins in federal court in the Northern District of Ohio.
The trial begins Monday and is “the largest and most complex litigation in the history of the United States,” Smith said. It will pit Summit and Cuyahoga counties in Ohio in a legal battle against hundreds of manufacturers, distributors and retailers accused of contributing to the nationwide opioid epidemic that began back in the 1990s in what’s called a benchmark trial — meaning it could set the template for how the defendants settle with thousands of other plaintiffs who have filed similar suits across the country.
Included among the thousands of plaintiffs that have joined the massive lawsuit against the opioid industry are the cities of Columbus and Starkville and the town of Caledonia, all of which Smith is representing.
Plaintiffs in the lawsuit — which was first filed in federal court about two years ago and which governments, individuals and other parties have since joined — allege “the manufacturers of prescription opioids grossly misrepresented the risks of long-term use of those drugs for persons with chronic pain, and distributors failed to properly monitor suspicious orders of those prescription drugs,” according to a description of the case on the Northern District of Ohio’s website. Smith said most experts estimate that since 1996, about the time the epidemic began, 400,000 people have died of opioid overdoses.
“There’s been years where we’ve lost more Americans to opioid problems than we did in the entire Vietnam War,” Smith said. “In one year. That’s nuts.”
Monday’s benchmark trial will likely take weeks, and could be the first of several, but it should give both plaintiffs and defendants an idea of what settlements are realistic as the litigation moves forward, Smith said.
Negotiation class
One of the primary issues involved in the litigation is arranging negotiations between thousands of plaintiffs and hundreds of defendants around the country. Because of the size and complexity of the case, Smith said, the plaintiffs have been split between seven tracks, including tracks just for individuals or just for hospitals and medical centers.
Columbus, Starkville and Caledonia are part of the track for local governments, which currently includes about 2,000 counties and municipalities.
In order to have as many of the cases settled as quickly as possible, federal judge Dan Polster, who is overseeing the litigation, created a new class called a negotiation class to represent those local governments. A team of attorneys who specialize in multi-district litigation will negotiate with plaintiffs on behalf of the entire class. Local governments who have already joined the litigation are automatically part of the class, but city or county officials can choose to opt out if they want to negotiate for themselves.
The benefit of this set-up is that it doesn’t give large cities like Chicago or New York an edge over smaller communities like Caledonia, Smith said. Instead of representatives from a smaller community with fewer resources having to negotiate on its own, all the governments are represented together.
“We’ve advised a lot of the entities we represent that it’s not advisable to opt out of the class solely because it stands to benefit some of the smaller people of the class,” Smith said. “… It doesn’t require a degree in rocket science to figure out that you’ve got a lot more bargaining power with 2,000 than you do with two, and that if you can stand toe to toe in a coalition with some of the largest municipalities and counties in the country, you’re obviously going to have a (much) better position and you’re going to have a whole lot better leverage.”
Once the attorneys representing the negotiation class agree on a settlement with the defendants, Smith said, at least 75 percent of the local governments in the class have to vote approving the settlement, which is where the Columbus City Council and boards of aldermen in Starkville and Caledonia come in.
“It provides not just a reasonable settlement, but it provides an equitable settlement as well,” Smith said.
Settlements
Once defendants agree to a global settlement, attorneys will be tasked with divvying up the settlement between the communities, Smith said. That’s still a long way down the road — the benchmark trials alone could take months — but how much money each community receives will likely depend on both the community’s population and rate of opioid use.
Mississippi’s rate of opioid use and abuse is higher than the national average, Smith said, and Lowndes County’s use is higher than the state average, meaning Lowndes County has been adversely affected by opioids. According to the Centers for Disease Control’s website, in 2017 Lowndes County had 100.3 prescriptions of opioids per 100 people and Oktibbeha County 64.9 prescriptions. Nationwide, the rate was 58.7 prescriptions per 100 people.
Though it may seem like the pay-outs are coming too late, Smith said the settlement money will be used to help pay for money local governments have already spent battling the epidemic.
“It costs money to have more police,” Smith said. “It costs money to have more district attorneys. It costs money to have additional judges and jails and ER visits. That’s already been paid for. That’s what the money comes in to do.
“This is money that’s actually been spent that you and I paid in taxes that shouldn’t have had to be spent, but for the conduct of the defendants,” he added.
The settlement money will also likely be used to help pay for addiction treatment and preventative measures, such as youth programs or even for law enforcement to invest in NARCAN, a drug used to reverse the effects of an opioid overdose.
Smith said though it may seem the trials and settlements are going slowly, he’s impressed by the speed and efficiency of the courts during the litigation process. Usually, he said, multi-district litigation like this can take five to seven years. This, he feels, will probably go faster.
“I don’t mean to sound cynical, but sometimes the wheel of justice moves at a glacial place,” he said. “In terms of case expediency on something like this, it’s going at light speed. I’m anxious to see how this’ll move forward.”
Ongoing cases
While the defendants include hundreds of companies responsible for manufacturing and distributing, some of the major corporations involved in opioid production have separate settlement negotiations ongoing. Last month, Purdue Pharma, which makes OxyContin, declared bankruptcy, meaning it’s settlements are being handled through bankruptcy court in White Plains. Johnson and Johnson also just offered a $4 billion settlement for all lawsuits against it for its role in the opioid crisis.
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