The Guilford County Board of Commissioners is bringing a major civil lawsuit against opioid manufacturers and distributors over what county officials claim is the industry’s reckless disregard for the safety and well being of Guilford County citizens. The suit will name national and multinational companies as defendants.
The lawsuit could mean millions of dollars for Guilford County that would be used to help cover the costs the county has absorbed in past years as a result of the opioid epidemic – one that the lawsuit claims is largely the fault of the opioid manufacturers and distributers. The money the county could receive in a court victory or legal settlement would also, county officials say, be put toward future programs meant to address opioid addiction in the community.
Guilford County commissioners, county legal and administrative staff and outside attorneys met behind the scenes late last year and in early 2018 to discuss the legal proceeding before Guilford County decided to file the suit against the companies in that multi-billion dollar industry.
Local governments across North Carolina and the country have filed similar lawsuits in recent months. Forsyth, Gaston, New Hanover and Orange counties are just some of the counties in the state that have filed lawsuits against the opioid producers and distributors in late 2017 or early 2018. The same is true in other parts of the country where opioid addiction has been a problem. For instance, in January, New York City filed a similar lawsuit.
The trend is reminiscent of the widespread state lawsuits against tobacco companies that went on for decades and led to big payouts for states – as well as for the attorneys and legal firms that represented those states.
Guilford County hasn’t yet released the names of the defendants, but Guilford County Attorney Mark Payne stated in an email to the Rhino Times that the list would include both opioid manufacturers and distributors, with most defendants based in the United States but two based in Ireland. Payne stated that all the companies have a significant North Carolina presence.
Three huge industry players that have been named in many, if not all, such suits brought by other local governments are AmerisourceBergen Corp., McKesson Corp. and Cardinal Health Inc.
Those and other pharmaceutical companies that manufacture and distribute opioids have come under fire nationally for what many critics claim is the industry’s intentional profiteering from the widespread crisis of addiction those companies helped to create and continue to foster.
Though Guilford County has yet to put a number on its damages, officials hope to win enough money in the suit to cover expenses for Guilford County Emergency Services, the Sheriff’s Department and other county departments that have over the years been burdened by the opioid epidemic.
Guilford County officials are arguing that the large pharmaceutical companies – which of course have extremely deep pockets – are legally responsible for the wrongful distribution of prescription opiates that have hurt the county’s population as well as its finances. It’s possible Guilford County could win triple damages if the court finds the companies violated the law in some especially egregious ways.
Chairman of the Guilford County Board of Commissioners Alan Branson said this week that the county commissioners have been in discussions regarding the court action for some time. He said that just the purchase and administration of the drug Narcan alone – a quick-acting medication that frequently saves the lives of people who have overdosed – has been costly.
But that’s just one expense the county has seen from the epidemic that’s led to the death of many citizens, been a big burden on emergency response teams and forced the county to divert resources to counter the problem.
Branson said he doesn’t know how much Guilford County will ask for in the suit.
“As for payment, I haven’t heard an exact amount,” he said, adding that he’s certain the litigation will not, under any circumstances, cost the county anything.
If Guilford County wins, payment of the legal fees will come from that pool of money, and, if the county loses, there will be no charge from the outside firms.
Guilford County has hired the McHugh Fuller Law Group to handle the litigation with the Guilford County’s attorney’s office. McHugh Fuller is a coalition of law firms with expertise and experience in pharmaceutical litigation. The Mississippi-based group has also handled a lot of cases involving improper care at nursing homes. McHugh Fuller will be the lead legal counsel for Forsyth County in its lawsuit against the opioid makers and also for some other counties in North Carolina in their suits.
Branson said that, in addition to the national firms that will work on Guilford County’s behalf on this suit, local attorneys Don Vaughan and Mike Fox will also play a role.
The McHugh Fuller Law Group and other attorneys working on the suit will get 25 percent of any amount Guilford County is awarded and will have that 25 percent to divide among themselves.
The attorneys involved could do extremely well for themselves if the local governments win the case or reach a settlement with a big payout. In the lawsuits brought in the ’90s against tobacco companies over the harm caused by smoking, the tobacco companies settled lawsuits with 46 states and agreed to pay those states about $206 billion over two decades. Those involved in the new opioid suits say a settlement or victory for the local governments could likewise result in those governments getting a great deal of money from the extremely lucrative industry.
Opioid addiction has been a rampant problem in the in the US snf Guilford County – especially in parts of High Point – for over a decade. Branson said that in recent years the number of addicts and overdoses has become even more alarming and the strain on county resources has been immense.
“There’s been a huge cost to keep these people alive over the last 24 to 36 months,” Branson said of opioid addicts. “EMS, the sheriff’s deputies – they respond to call after call after call on this.”
Branson said he and other commissioners listened to county staff, the outside attorneys and the Guilford County attorney before deciding to make the move. He said Commissioner Kay Cashion was very active in the decision since she’s the Board of Commissioners’ point person on drug abuse and mental health, as well as the board’s liaison to Sandhills Center – the local management entity (LME) that oversees the administration of mental health care in Guilford County.
“Kay has been interested in this for some time,” Branson said.
He added that the county attorney’s office was also clearly in favor of the move.
“Mark [Payne] kind of led the charge,” Branson said.
According to Branson, given the tremendous amount of resources Guilford County throws at the opioid problem each year, it makes sense to get “those responsible in the first place” to help bear the cost.
While everyone knows the wheels of justice turn slowly, several county officials say they expect to see this case wrapped up within a year or two.
Branson said, “My question was: ‘Is this a four- to five-year case?’”
He said the answer he heard was that it wouldn’t be.
In legal terminology, Guilford County is claiming major opiate manufacturers and distributors have “unlawfully contributed to a public nuisance” in Guilford County. The central argument is that the widespread availability of opiates along with the failure of the industry to control the distribution of the drug has created the current crisis that in many cases has led to the death of citizens. According to statistics provided by Guilford County, in 2017 there were 80 verified opioid or heroin overdose deaths and 700 opioid overdose reversals in the county.
Many heroin addicts got their start down that path with medically prescribed opioids before switching to heroin as their drug of choice because it was cheaper to buy from drug dealers. Payne said that’s something that makes the problem even more tragic – the fact that so many people who’ve become addicted to narcotics got that way through what at first was a legitimate medical use of opiates. A person may have severe back pain, he said, and been given a prescription, which then continues because the pain didn’t subside. In some cases, those back pain patients found themselves addicted to opioids and later heroin.
Guilford County Emergency Services Director Jim Albright said this week that, when it comes to overdose deaths and related emergency calls, most of the time those are the result of the use of illicit drugs such as heroin, but he added that many of those addicts got started down the path of addiction through prescription drug use.
Albright said that responding to calls related to overdose and treating the problem is expensive and added that his department spent $85,000 on Narcan last year. He also said there aren’t enough treatment centers in Guilford County to handle the number of addicts and added that, if the county wins the lawsuit, one thing he hopes to see is some of that money going toward increasing the availability of treatment in the county.
Guilford County’s suit isn’t a “class action” lawsuit in which the county enjoined with many other cities or counties; however, many local governments in North Carolina and other states have taken similar actions, and there will be some orchestration within the court system, which will treat some of these comparable lawsuits collectively in order to streamline the process.
Payne said some discovery and pretrial aspects of the case will be conducted through “multidistrict litigation,” an “MDL” – which is a process the court uses to speed up cases from multiple jurisdictions when there are common elements involving complex questions.
Payne said the opioid epidemic has cost Guilford County a “significant amount in money and resources” over the years and, while he didn’t name a specific amount of damages the county will ask for, others have said that it would take an award in the millions for Guilford County to be fairly compensated for the harm the opioid epidemic has caused.
Payne said there’s clear evidence that some markets have been flooded with opioid to a degree “way more than justified for any medical reason.”
He added that this isn’t at all like a case where a county might blame the makers of Twinkies for people in that county becoming overweight after a massive number of Twinkies were sold there. Payne said that in the case of opioid distribution – unlike Twinkies – federal law requires that makers and distributors track where their product goes to make sure it’s not getting in the wrong hands.
Payne said there are situations where it’s clear to any reasonable person that there’s an excess of opioids for a given area. He cited Dreamland: The True Tale of America’s Opiate Epidemic, a 2015 book that helped open many eyes to America’s opioid problem.
News reports and government investigations have also revealed striking examples of apparent negligence by the drug companies, such as what happened in Williamson, West Virginia, a town with a population of less than 3,000. Between 2006 and 2016, pharmaceutical companies shipped over 20 million opioid painkillers to two pharmacies in that small town.
Payne said Guilford County has put a lot of effort into fighting the problem here.
“We’re doing a lot of things about opioids,” he said.
He added that this money would help cover expenses for answering these types of calls.
“We’re seeking to get costs and pay money that we’re out for responses,” he said, adding that other money was being sought to go toward new programs to help those affected.
Payne also explained why, even though the lawsuit has the full support of the Board of Commissioners, no public vote on the matter was taken at any meeting.
“A formal vote of the Board is not necessary,” Payne wrote in an email. “Counting Child Support and DSS [Division of Social Services] cases, the county enters into hundreds of lawsuits and defends dozens more every year, none getting or requiring a vote of the Board of Commissioners. Filing or defending a lawsuit is an administrative function; the Board of Commissioners is very involved in this litigation, as they are with many of our significant cases, but we handled it the same way we do all our litigation.”
In the meantime, Guilford County has been trying to fight the problem on its own. The county has begun an effort called GCSTOP, which stands for Guilford County Solution to the Opioid Problem. In that program, teams made up of members from several county departments help those with substance abuse problems through follow up visits after an overdose or other crisis.
Guilford County Sheriff BJ Barnes said his officers often go on calls with county medical staff since there can be a need for law enforcement at a drug overdose scene. He said even sometimes responders save an addict’s life and he or she gets upset and even violent over being saved.
“We may bring them back to life and they are pissed off that we got rid of their high,” Barnes said.
I have two concerns. First, Branson says that “under no circumstances the county will not be exposed financially”. What if the defendants decide to sue the county for legal costs if they are found innocent? And second, could this send us down a slippery slope where gun manufacturers could be sued for their product being used to kill people?
It seems to me the doctors who prescribe the opioids should bear the greatest responsibility for their abuse.