Fourteen law firms — including seven based in Florida — have expressed an interest in representing Palm Beach County if it decides to file suit against opioid manufacturers, distributors or pharmacies, according to a report prepared by the county attorney’s office.
At the suggestion of County Commissioner Melissa McKinlay, whose former aide lost a daughter to the opioid epidemic, commissioners directed County Attorney Denise Nieman to explore the possibility of the county filing suit against opioid manufacturers or distributors.
Nieman’s report, which will be presented to commissioners when they meet on Tuesday, found a complicated legal landscape with lots of activity as governments try to recover some of the money they have spent combating an opioid crisis they contend has been made worse by various aspects of the drug manufacturing, prescribing and distribution process.
“I’m ready to move forward with the lawsuit,” McKinslay said Monday evening. She said she wants Nieman to narrow the list of law firms so the commission can make a final choice.
While the opioid crisis has been particularly pernicious in Florida in general and in Palm Beach County in particular, much of the action regarding lawsuits has taken place beyond the Sunshine State.
“To date, over eighty governmental entities nationwide have filed suit against opioid manufacturers, distributors, pharmacies, and/or doctors in both state and federal courts,” Nieman’s report states. “Currently, no Florida government entities have filed suit and, to the best of our knowledge, the City of Delray is the only public entity in Florida that has retained a firm.”
Delray Beach has hired Robbins Geller Rudman & Dowd, a national firm with an office in Boca Raton, to represent it in a lawsuit against at least eight pharmaceutical makers and distributors, including Purdue Pharma and McKesson Corp.
Geller Rudman & Dowd is among the 14 firms that have told Nieman’s office they are interested in representing Palm Beach County should it decide to sue.
A handful of states — Mississippi, Missouri and Ohio — have sued drug companies, arguing that they are at least in part to blame for the spiraling opioid epidemic. A report from the National Association of Counties also notes that counties in West Virginia, New York and Illinois have filed suit.
The suits are reminiscent of the legal attacks states mounted in the 1990s against tobacco companies, who were knocked for their advertising practices and for increasing health care costs.
After years of litigation, the largest four tobacco companies in the U.S. reached a master settlement in 1998, agreeing to pay a combined $5 trillion over 25 years.
Nieman has stressed that her office would not be handling any suit against Big Pharma if one is filed.
“Should the (Board of County Commissioners) decide to commence litigation, it would be necessary to retain outside counsel, as the nature of this type of litigation goes well beyond what the (county attorney’s office) can handle,” the report states.
Nieman said she would recommend a competitive bidding process with her office selecting a firm or whittling the bidding firms down to three, with commissioners making the selection from among those finalists.
Nieman’s report did note some big dollar settlements in suits brought by governments against pharmaceutical firms, including:
- A 2007 suit against Purdue Pharma, which was settled for $75 million. The U.S. Department of Justice used some of the information from that case to get a criminal penalty of $692 million. More than two dozen states got a settlement of $19 million.
- Drug distributor McKesson paid $13.25 million to U.S. attorneys’ offices in Florida, Maryland, Colorado, Texas, Utah and California in 2008 to settle civil penalties that three McKesson facilities failed to report suspicious orders of hydrocodone and alprazolam.
- Cardinal Health in 2008 paid $34 million to U.S. attorneys’ offices in Florida and six other states for failing to report suspicious orders of hydrocodone and for violations of the Controlled Substances Act.
- A CVS in Sanford settled a case in 2015 brought by the U.S. Drug Enforcement Agency and U.S. attorneys offices after the pharmacy was accused of “filling painkiller prescriptions far in excess of the average pharmacy in violation of the Controlled Substances Act.”
- McKesson settled with the Justice Department for $150 million “because they did not warn the DEA about the large # of suspicious orders; this settlement included suspension of sales of controlled substances from distribution centers in Colorado, Ohio, Michigan and Florida.”
There have been other settlements across the country, but Nieman’s report warns that getting a settlement is not guaranteed in a climate where many lawsuits have recently been initiated.
“Most of the lawsuits are in the early pleading stage,” the report states. “Therefore, it is not possible to predict a possible outcome at this time.”
Commissioner Hal Valeche said he would like the county to consider ways it can recoup costs expended combating the opioid crisis. But he said the buck might not only stop with drug companies. Over-prescribing doctors, distribution centers and other elements of the industry should be considered, too, he said.
“Singling out one particular segment in this whole problem doesn’t strike me as fair,” he said.
Valeche said he is concerned about the financial risks of pursuing legal action.
“If you lose, the court can assign you costs,” he said, describing a scenario in which the county could be on the hook for tens of thousands of dollars in legal fees and other costs if a judge determines the county knew or should have known its case had no legal merit.
Valeche said he would want the county to hire a firm that agreed to cover those costs.
Nieman’s report indicated the county would not be interested in using taxpayer money on a case it loses.
“Based on firms’ informal representations, litigation would be pursued without county funding,” the report states. “Attorney’s fees would be paid on a contingency bases, with costs fronted by the firm, only to be reimbursed by the county if there is an acceptable recovery. Firms have not been able to give us a reliable estimate of what those costs could be.”
Interested law firms
1. Weiss, Handler and Cornwell (Boca Raton)
2. Motley Rice (multiple locations)
3. Simmons, Hanly, Conroy (multiple locations)
4. Levin, Papantonio, Thomas, Mitchell, Rafferty and Proctor (Pensacola)
5. Robbins, Geller, Rudman and Dowd (Boca Raton)
6. Napoli Shkolnik (multiple locations)
7. Gordon and Doner (Palm Beach Gardens)
8. Critton, Luttier and Coleman (West Palm Beach)
9. Mike Moore Law Firm (Flowood, Miss.)
10. Gilbert (Washington, D.C.)
11. Labaton Sucharow (New York)
12. Searcy, Denny, Scarola, Barnhart and Shipley (West Palm Beach)
13. Podhurst Orseck (Miami)
14. Michael Bern and Partners (New York)