More than two dozen counties in Utah have filed lawsuits against opioid makers or are considering doing so. But are they really thinking of going to trial with multibillion-dollar pharmaceutical companies?
Teneille Brown, a professor of law and biosciences at the University of Utah, sat down with KUER’s Erik Neumann to talk about this legal strategy.
KUER: The thing that occurred to me when covering some of these lawsuits is it just seemed so crazy that you have Tooele County or Weber County who are going to propose a lawsuit against Purdue, these massive pharmaceutical companies. So, are they just really confident that they’re not going to have to go to court?
Brown: Well, I think it’s quite possible they will settle. It’s possible that they want to get picked up by the multi-district national litigation. If their claims get picked up into that, they won’t need to be doing most of the legal work independently. So, that might be their strategy. It might be that they want to become part of that national litigation and then divide up the damages. Or, they might want to keep it in Utah. They might feel like the home-court advantage will benefit them if they think they’ve uniquely been hit, they think the juries here might be more responsive to their claims. They may fight to keep it here in Utah. But, they might want to bring this to court.
KUER: Is there any kind of a risk for these counties to get into these lawsuits?
Brown: Yeah, there’s a risk of cost. There’s a risk that if they don’t get to be part of the national litigation they may not get the damages that they would if they were part of that. In any negotiation, the big defendants – Purdue, Endo – they’re more likely to negotiate a favorable outcome the bigger the group is that they’re negotiating with. So [with] the little counties, there is a risk that if they’re bringing their suits separately they may not get as much. But the flip side of that, what they gain, is they have more control over the money that they do get where it goes.
KUER: What about the reward for some of these counties? At least in the case of Weber County, they didn’t talk about damages, any particular amount. What do you think counties have to gain from these lawsuits?
Brown: Definitely a lot of money. They’re looking for millions of dollars in payouts just like we saw with the 'big tobacco' litigation. They’re looking for money for addiction treatment. They’re looking for money for law enforcement. They’re certainly wanting money. Even the state attorney general is going to want money.
KUER: You mentioned 'big tobacco' and some of the lawsuits that happened during the 1990s. Is this directly from that playbook?
Brown: I would say it’s pretty similar and some of the claims we’re seeing are pretty similar claims – the product defect claims, the public nuisance claims. We’ve learned a lot from the tobacco litigation and I think a lot of the lessons learned they’re trying to incorporate them here to sort of cap the attorney’s fees. It’s not wrong for attorneys to make money on these complicated matters but they were making billions of dollars. Some of the states have enacted limits on what the attorneys can be paid, like maybe 10 percent up to $10 million and then anything over that kind of a sliding scale to try to learn from those lessons. To say we want to benefit from having all these cases tied together and pooling our resources but we also want to be not putting all of our damages money into attorneys. We’d like it to come back to the states and come back to the counties to actually pay for some of this law enforcement and mental health treatment.
KUER: One thing that I’ve heard you mention before is that this sort of shows the power of lawsuits as opposed to trying to approach this through government.
Brown: There’s obviously a lot of complicated politics behind this and the pharmaceutical industry is probably one of the most, if not the most, powerful lobby group. So, coming after them legislatively has been difficult. I think there is a political element here that is hard to try to regulate those pharmaceutical companies through the legislature. And there are definitely politics in the courts but they’re much less political. If you’re going after a big Goliath and you’re a little David, the courts are where you want to go because even though they can certainly respond and they have responded with really aggressive defense tactics, there’s much more even playing field in the courts.