BR.opioidsummit.120618_TS_113

Baton Rouge's Ben Peabody, left, who said he has spent about 30 years as a recovering addict and sponsoring and helping others experiencing addiction, talks with East Baton Rouge Parish Coroner William 'Beau' Clark, right, just before Clark spoke at a summit with Capital Area Human Services and local healthcare professionals releasing a nine-point plan to locally address the opioid epidemic Wednesday, Dec. 5, 2018 at BREC's Milton J. Womack Building.

If you live in Louisiana, there is a good chance your local government has filed a lawsuit against opioid makers or distributors, seeking damages for the companies’ alleged fueling of the nation’s opioid crisis.

More than 100 lawsuits filed in Louisiana — the lion’s share of them by cities, towns, parishes and sheriffs — are included in a massive docket of more than 2,000 similar cases from across the U.S. The plaintiffs include cities like Baton Rouge and New Orleans, insurers like Blue Cross and Blue Shield and even the University of Louisiana System, which filed suit this month.

Now comes the hard part: reaching a deal that could provide a windfall of money to cities and states across the country — including potentially every city in Louisiana — to help abate the opioid epidemic. 

The cases sit before an Ohio federal judge, who has pushed both sides to move toward a settlement that addresses America's opioid problem. In response, the plaintiffs' lawyers have devised a unique system that would rope every single city in America into the case, creating a formula to determine how much in settlement funds each would receive.

Baton Rouge is a class representative in the case, making it one of the jurisdictions that will represent the interests of all political subdivisions in the country if the class is certified by the court.

But the ballooning number of lawsuits on the Ohio docket, along with even more lawsuits filed by states like Louisiana, has added layers of complexity to the issue. A group of state attorneys general, including Louisiana's Jeff Landry, recently sent a letter to the Ohio judge that cast doubt on the “novel” new approach to negotiating and asked the judge to delay ruling on it.

Crucial dates are approaching. The first bellwether case on the Ohio docket is set for trial in October, and U.S. District Judge Dan Aaron Polster in Cleveland could rule on the negotiation class idea in August.

“The pressure is starting to increase for everybody to try to get a resolution as we stare down that trial date in October,” said Burton Leblanc, a lawyer with Baron & Budd who was hired by Baton Rouge to represent the city in the fight against opioid distributors. “The judge wants us to settle ... We need to get something done.”

A complex case

The more than 2,000 suits brought by cities, towns, counties, Native American tribes, labor unions and a host of others are all consolidated in what’s known as multi-district litigation. Polster is overseeing all those cases, including the more than 100 filed by Louisiana cities, parishes, towns, sheriffs, fire districts, tribes and others.

The defendants include drug makers and distributors, who allegedly fueled the opioid crisis by falsely marketing powerful, addictive drugs as safe, pumping them into the market with little regard for their effects — including a historic rise in overdose deaths. The governments suing the companies cite dramatically increased costs associated with the epidemic, for spending on health care, incarceration, emergency response and more. 

Purdue Pharma, the maker of the blockbuster opioid OxyContin, is at the center of many of the lawsuits. The firm didn’t respond to a request for comment, but like other defendants it has strongly denied the allegations.

John Parker, of the Healthcare Distribution Alliance, which represents distributors, said the idea those companies are to blame for the number of opioid prescriptions written "defies common sense." 

Margaret Thomas, an expert in complex litigation at the LSU law school, said multi-district litigation is designed to handle these types of complicated issues. Polster's job is even harder, though, because the state lawsuits aren't under his control. That's why attorneys general are part of the negotiations in Polster's court. 

“We’ve seen lots and lots of (multi-district litigation cases) that are big, complex and have thousands of claims — even more claims than this one,” Thomas said. “But have we seen them with as many types of players in terms of cities, unions, Indian tribes, individual states? I can’t think of one that’s exactly like this.”

Leblanc, who is working on the Baton Rouge case for a potential 25% cut of a settlement, has enlisted the help of Ted James, a Baton Rouge Democratic state representative. Leblanc said Baton Rouge is an appropriate class representative in the case because it has been particularly hard hit by the opioid crisis.

“Baton Rouge unfortunately has one of the highest opioid prescription rates per capita in the state and the South,” Mayor-President Sharon Weston Broome, who hired Leblanc, said in a statement. “We have also been dramatically impacted by overdose and death due to opioids.”

If the negotiating class is approved by the judge, lawyers would use a formula to figure out which cities have been hurt worst by the opioid epidemic, and allocate the settlement dollars accordingly.

“What we’ve learned is the companies are not willing to come to the table with any meaningful dollars or resources until we can give them certainty we can wrap up the litigation,” Leblanc said. “That’s why we filed this negotiating class.”

Separate from the multi-district litigation, though, Gov. John Bel Edwards’ administration filed its own lawsuit in state court in late 2017. After a dispute with Republican Landry, who is a political rival of the Democratic governor, the two agreed in early 2018 that Landry would represent Louisiana in the case against 17 pharmaceutical companies. Nearly every state in the U.S. has now filed suit in the rush to litigate the opioid crisis.

In the letter sent to Polster recently, the attorneys general, including Landry, batted back the idea of the negotiation class that would include every city in the U.S., arguing that it cannot bring about a “global” settlement because states will continue to litigate their own cases.

Recently, the state of Oklahoma reached a settlement with one of the defendants in the slate of opioid suits, Teva Pharmaceutical, that sends $85 million to the state.

Thomas, of LSU, said that settlement — for one state and with only one of the many pharmaceutical firms — "raises the stakes” in the opioid litigation. She believes it indicates the numbers will rise in a potential global settlement, which would resolve virtually all claims brought by cities and states.

“It signaled these cases are worth more than perhaps people initially thought they were,” she said.

Jennifer Connolly, of Baron & Budd, one of the 19 lawyers now contracted with the state to work on the opioid litigation, said there’s no guarantee the cases will be resolved with “complete peace,” though that is one of many potential outcomes on the table.

Connolly likened the opioid litigation to the tobacco litigation of the 1990s, which delivered a windfall in settlement dollars to states including Louisiana. This time, though, municipalities that felt they did not have sufficient say in where the tobacco money went filed suit against opioid makers to have a seat at the table when the litigation nears a settlement.

Growing claims

The suits have ballooned in Louisiana in the past year and a half. Lawyers have sought out lucrative contracts with cities and the state, which in turn have rushed to grab a slice of whatever settlement might come from the litigation.

According to Jerry Cronin of RMI Inc., a subsidiary of the Louisiana Municipal Association, 30 municipalities in Louisiana have filed lawsuits on the issue, from small towns like Berwick to cities like Baton Rouge and New Orleans.

Coroner’s offices; rehab organizations like Odyssey House in New Orleans; sheriffs including Jefferson Parish’s Joe Lopinto; and Native American tribes including the Tunica-Biloxi and Four Winds Louisiana Cherokee are all part of the action. So too are fire protection districts in places like St. Tammany Parish and West Baton Rouge, a Gretna ambulance company and Louisiana’s largest health insurer, Blue Cross.

One unique entity to file suit is the University of Louisiana System, which oversees nine colleges and universities including the University of Louisiana-Lafayette, Southeastern Louisiana University and the University of New Orleans.

Jim Henderson, president of the UL System, likened a university campus to a municipality. It has residents and its own police force, for instance.

Those university campuses also face the same types of consequences from the opioid epidemic as anywhere else, he said. Opioid abuse has not only strained emergency services, but also led to hard-to-quantify behavioral issues among students and absenteeism among employees, he said.

If the schools do receive a slice of the settlement, Henderson said the money will go to prevention and treatment of opioid addiction.

“This is not a windfall for operations by any stretch of the imagination,” he said. “This is helping students and staff who have a problem with opioid addiction.”

A continuing crisis 

While fatal drug overdoses appeared to finally level off in Louisiana last year, the state is still facing historically high numbers of deaths and an alarming rise in the deadly synthetic opioid fentanyl. In 2017, 401 people in Louisiana died from opioid overdoses, up from 160 in 2012.

The state lawsuit pegged the annual costs of the epidemic at about $300 million in government spending on health care, prisons, social services and schools and in lost productivity.

Prescriptions have fallen steadily, however, as the state has tightened laws on prescribing. According to figures provided by the Louisiana Board of Pharmacy, the number of opioid prescriptions per 100 residents fell to 96 last year, down from 105 the year before and about 116 in 2014.

So far this year, at least 46 people in East Baton Rouge Parish have died from drug overdoses, most from heroin and other opioids, according to Coroner Beau Clark. That’s more than the number of homicides in the parish so far, 36, according to Clark's figures. 

Fentanyl, a powerful synthetic opioid, has “surged” into the local market in an alarming trend, Clark said. The drug is more dangerous than prescription opioids like OxyContin or even heroin because of its potency.

Clark said settlement dollars should be funneled almost entirely into addiction treatment. Rehab services are often not covered by insurance, which has left people without the means to pay for it out in the cold, he said.

“I think the solution is to take all that settlement money and as much as possible put it into the treatment side,” he said. “The education side will take care of itself.”

Email Sam Karlin at skarlin@theadvocate.com