Lincoln joins litigation against opioid wholesale distributors

Published 5:24 pm Tuesday, August 8, 2017

STANFORD – Lincoln County is the latest to join a multi-state litigation effort to hold wholesale distributors of opioids accountable for the amount of pills pouring into communities. 

Approving the resolution, filing the lawsuit and joining the team of others going after wholesale distributors was a “no-brainer” to County Attorney Daryl Day. 

Magistrates voted July 17 to move forward with the litigation and join other counties in the state like Garrard, as well as counties in West Virginia and southern Ohio, Day said.  

“If you manufacture opioids – oxycontin, hydrocodone, those types of things – you cannot sell to a pharmacy. A pharmacy cannot buy directly from the manufacturer, that is by federal law and a system they intentionally set up,” Day said. The intention of that set-up was to make wholesale distributors the policing agency of opioids, Day said. 

“They have the right and the duty to refuse orders and shipments,” he said. “These law firms, and there is a number of them, started with a guy in West Virginia…he figured this out. A lot of states’ attorney generals are settling with the manufacturers of opioids on these claims that they’re producing too many. What he figured out, looking at the numbers…they’re pumping 300 doses of hydrocodone for every man, woman and child into Cabell County, West Virginia on a yearly basis. There’s no way that everybody there is taking that much, (300) or some crazy number like that.” 

The attorney realized the wholesale distributors were not policing the sales as they are required to by federal law and decided to file a lawsuit not against the manufacturers, but the distributors. 

“So he figured out they’re not doing their duty, so they filed seven of these lawsuits in West Virginia. They currently have 15 counties or communities in Ohio ready to file these and the next step, because we’re kind of ground-zero of the opioid epidemic…they’re wanting to branch out and do it here,” Day said. 

The benefit for Lincoln County is that the litigation costs the county nothing but could produce funds from a settlement. 

“…Unless we get a recovery, then they (law firms) get a percentage of what we recover,” he said. “They will pay all the cost, we owe them nothing.”

Day said there are a handful of top U.S. law firms that make up the litigation team. According to the Kentucky Opioid Litigation documentation that was presented to the fiscal court, the “Counsel in Consortium” includes Baron & Budd, P.C.; Levin Papantonio et al.; Green, Ketchum, Farrell, Bailey & Tweel, LLP; Hill, Peterson, Carper, Bee & Deitzler, PLLC; and McHugh Fuller Law Group. 

The 72-page packet titled “Kentucky County Opioid Litigation” provides samples of “key documents” and relevant federal statute, as well as information on the litigation team. 

“The other benefit is, the way it was presented to us, the fiscal court is in control of when this lawsuit, now that it’s getting ready to start… they’re in control of when it ends,” Day said. “So they’re in control of what we ask for as far as damages. We might get a thousand dollars and we might get a million dollars.”

Damages awarded to the county as a result of a settlement could be used to fund things such as prevention programs at local schools. 

“Part of that money could be used to build or remodel the jail. Part of that money could be used to hire more police officers. Part of that money could be put into a fund to sponsor treatment for people that need it,” Day said. “But the fiscal court is in control of when we get to the magic number we settle on – they’re the client.” 

Day said it’s an interesting legal theory. 

“They’ve already crossed some of the major hurdles as far as getting this to trial,” he said. “We were promised, and we’re in control of that, if they don’t come back with a number that we’re happy with, they will take it to trial.” 

The more time-consuming legal hurdles have already been taken care of, Day said. 

“Which means, they’re to the point where these wholesale distributors have to get serious about settling it or they have to get serious, on the West Virginia cases, about going to trial on it,” he said. 

A team of attorneys from each law firm will be assigned to each county, Day added. 

“This is not class-action lawsuit status, each county is going to be standing on their own footing. We will have our own lawyers from these firms that will be doing nothing but representing us,” he said. “Our settlement final number may be very similar to (nearby) counties but it will be reached by each fiscal court in consultation with their lawyers individually.” 

According to the Kentucky Opioid Litigation packet the counties’ causes of actions include public nuisance, which states counties in Kentucky are specifically authorized to act to remedy the serious problems caused by the opioid epidemic and of these powers, “§ 67.080, authorizes the ‘abatement of public nuisances’ and therefore gives counties the capacity to take action.” 

The “overbearing presence” of opioids can be described as a public nuisance, according to the litigation team. 

The state statutes violated by the distributors include KRS §218a.170(4) which states that all distribution of controlled substances shall be in accordance with the “federal controlled substances law” according to the legal team. 

“Under this provision, Kentucky adopts the suspicious order reporting requirement of the federal government and makes a violation of that law, a violation of Kentucky law,” the litigation packet states. “Additionally, KRS §315.402(2) requires that wholesalers ‘maintain accurate records of all drugs handled; and that these records must be made available upon request to the pharmacy board.” 

Other causes of actions listed in the “overview memorandum” include negligence. Distributors violated their “standard of care” by failing to identify and report suspicious opioid orders to the DEA (Drug Enforcement Agency) or other state agencies. 

“There is no doubt that these violations directly contributed to the opioid epidemic that is running rampant across the nation, and without question, substantial damages have been incurred by the counties of Kentucky,” the overview memorandum states. 

The overview also calls for punitive damages. 

“The distributor defendants in this matter lined their pockets while blindly filling order after order for highly addictive controlled substances that they knew full-well had a high potential to end up in the wrong hands. The conduct of the distributor defendants was incredibly reckless and certainly led to both death, and bodily harm,” the document states. 

“Here’s the problem,” Day said. “Every body thinks if you wipe out pain pills, wipe out heroin, wipe out meth, ‘hey, our county is suddenly great.’ We have 50 years of problems still to come because we’ve got 20 years of children who have been born to moms addicted.”

We’ve got another 25, 30 or 50 years of people who have been addicted and the problems they’ve caused their bodies that we’ve got to take care of through our school system, through our jail and criminal justice system, through our health system and community. We’ve got people who are never going to be able to hold a job or be a productive member of society because their brain and their body is just so damaged from drugs over the last 20 years. There’s no way they can go back to being what they were before or being what they should’ve been had it not been for these.” 

The opioid epidemic is a longterm problem, Day said. 

“Even if every pharmacy in Lincoln County quit selling it, every person in Lincoln County quit taking these drugs, we’re 50 years away from a solution. We’re going to deal with that,” he said. “I’m not putting people down, because  a lot of people get hooked on those things through no fault of their own, they’re taking them after a surgery and just never feel like they can get off of them, but we’re going to deal with those problems.” 

The children in the community now could have issues that we don’t know about yet as a result of the opioid epidemic, Day said. 

“We don’t really know the full extent of it and won’t in my productive lifetime. I’m going to be 70 years old before we truly understand the impact of that. My children are going to deal with that,” he said. 

Day said the fiscal court was fully behind the litigation and quickly approved the resolution to move forward.