Carroll County to potentially join national, state opioid litigation
By Jennifer Turiano
Carroll County Times|
Jan 25, 2019 | 7:00 AM
Until this week, Carroll County Attorney Tim Burke has been unable to dig deep into researching opportunities for Carroll to join existing litigation against opioid manufacturers on a national or state level.
But the Board of Carroll County Commissioners gave him the go-ahead this week to see what options would be best for the county.
“The cost to counties, states and local governments in the local opioid crisis have been astronomical when you add up all the costs: emergency medical costs for emergency treatment, overdoses, the costs to the criminal justice system,” Burke said. “We are talking about a serious cash crunch to local governments.”
What the county needs to determine, he said, is how it will attempt to get some of that money back: by suing opioid manufacturers through multi-district litigation in federal court, or in state court.
“[Those joining the lawsuits] are saying these manufacturers or distributors either misled doctors or patients by playing down the addictive nature of these medications, leading to the crisis,” Burke explained. “Due to the sheer volume of opioids being distributed, they should have known there was an addiction out there and a black market.
“The sheer number of opioids shipped to small rural communities, tiny towns and distributed through small mom-and-pop pharmacies,” he said. “And there are two avenues local governments and states have been taking to recover these costs.”
If the county chooses federal court, it will join 600 other local government cases in the northern district of Ohio with a single judge overseeing them.
“He's been pushing them towards a settlement but there has been no resolution as of this point,” he said. “The first cases are scheduled to be tried in March; those were filed by Cleveland and other Ohio jurisdictions.”
But another option exists, he said, to approach the issue from a different angle by filing the suit in state court.
“You’ll get your case heard, but by a local judge as opposed to a multi-district judge in Ohio,” Burke explained. “And in local Maryland court, the theories they are using are: fraud, negligence, false advertising, deceptive marketing of drugs.”
About 11 counties have filed lawsuits in the State of Maryland, he said, but he cannot talk with attorneys working on these cases in other jurisdictions without permission from the board.
Commissioner Eric Bouchat, R-District 4, made battling the opioid epidemic a cornerstone of his election campaign last year, and said it’s time to get the ball rolling on a state suit.
“I'd really like to pursue this case in state court,” he said. “At the [Maryland Association of Counties] conference it seems to be favorable for us, with Maryland civil law, to sue them in state court and get a settlement.
“I'd like to see us pursue suing opioid manufacturers in Carroll County Circuit Court,” said Bouchat.
Commissioner Stephen Wantz, R-District 1, said although he didn’t disagree with Bouchat, he wanted to make sure Burke got all the information he needed to determine which route is best.
“I think that probably would be the best route to go,” he said, “but today we give [Tim Burke] the authorization to move forward. You get us what you think would be the best route of travel for us and come back and let us know what that is.”
Wantz said the issue has come up twice before, but that the third time might be the charm.
“I think this is different, and you’ve already kind of suggested that [Tim],” he said. “We’ve seen that across the board, and I think our colleagues across the state have said that it’s different.”
Commissioner Dennis Frazier, R-District 3, said although the proposal for the county to sue opioid manufacturers failed in the past — partially because people compare it to the lawsuits filed against big tobacco in the past — there is a key difference that would make it worthwhile.
“This is not like the tobacco industry,” he said. “You have doctors that are supposed to be the gatekeepers before this gets out to the community.
“The manufacturers, when they first put this out, said ‘if you use this in the way it’s prescribed it’s not an addictive substance,’ ” Frazier said. “That was incorrect information. The information put out was wrong.
“I don’t know if they knew at the time, I don’t know if it was deceptive, but it was wrong,” he said. “People got the pills from the doctors and then they became addicted. If the information that came out was correct in the first place, I wouldn’t be in favor of doing this litigation in the first place — but it wasn’t.”
Commissioner Ed Rothstein, R-District 5, likened handling the opioid epidemic to his own personal experience.
“In this situation, associating this evil with my experience is big terrorism,” Rothstein said. “Back in the day we had to apply everything we could to stop that, and I don’t think we’re applying everything we can right now to stop this disease, this evil.
“If this is a step in that direction,” he told Burke, “I think as the very valuable resource that you are, investigating and pursuing this is definitely warranted.”
Commissioner Richard Weaver, R-District 2, said that historically he had been against the county joining a lawsuit, but that he has changed his mind.
“Philosophically, the county suing somebody goes against my moral fiber,” he said at the meeting. “I originally voted against this, however, I am with you 100 percent now.
“I think we need to so something to get this stopped,” said Weaver, “and do whatever it takes to do this.”
Burke will begin seeking counsel to determine the best course of action for the county and bring it back to the Board of Commissioners at a later date that had not been determined.