REED CITY — In February, Osceola County and other municipalities joined a multidistrict lawsuit against pharmaceutical companies accused of businesses practices that are believed to have caused the current opioid epidemic.
Technically, pharmaceutical companies are not on trial. The dispute between communities and pharmaceutical companies is being carried in settlement conferences overseen by a federal judge.
So far, three of these conferences have been held, and federal judge Dan Polster, who’s currently mediating the dispute is determined to see it resolved before the end of the year.
Tim Smith is an attorney with the law firm Smith and Johnson who was hired by Osceola, Wexford and many other Michigan counties for the lawsuit.
“If they can come to an agreement so much is in play,” Smith said.
“Fire department, medical examiner, sheriff’s, jails, TNT officer — all that money spent on this epidemic. We’re fighting for that,” Smith said.
So, if the parties agree on a settlement, it will be at one of these conferences, and they could come to that agreement at the next conference or not at all.
If they can agree on terms, then no case goes to trial. However, the communities accusing actors in the pharmaceutical industry for causing the opioid epidemic have stiff demands, and it’s unlikely that an agreement will come any time soon.
“The groups will continue to meet and gain ground where we can, but at some point at the end of 2018 someone will say ‘uncle,’” Smith said.
All cases filed have been transferred to the northern district of Ohio, where federal judge Dan Polster took them on and agreed to tackle what has been called one of the largest and most complex pieces of litigation in history.
In December 2017, Polster said he was going to have the dispute settled in 2018, and there will be no trial if the parties reach a settlement agreement.
If Polster is successful, Smith explained, the resolution would look similar to the way tobacco companies were reigned-in in the 1990s — like restrictions on manufacturing and marketing such as no more sales staff at doctors’ offices. In addition, it may include criminal plea agreements for companies that violated federal laws and regulations.
“(Judge Polster) recognized those investigations and those finds didn’t change anything. Those companies wrote checks and went back to business as usual,” Smith said.
It’ll remain to be seen if he is successful.
If not, Smith said that Polster himself said he would try the first case, that had originally been submitted to the Northern District of Ohio, in 2019.
If the parties cannot reach an agreement, then each of the 200 cases could be tried individually.
Smith said each of these cases could be carried out as “bellwether cases,” where the results of the cases tried from a variety of plaintiffs like big states, small counties, and urban and rural communities, could gauge the success of all cases.
“It’ll be used to get an idea of what value is of these claims,” Smith said. “In a trial, the jury can say the claim (of the city, county or state) is worth x and now people work to resolve claims have an idea of what they’re worth because the jury in those instances chose the value x.”
Regardless of how the settlement or potential trials turn out, Smith said there has already been a change in the way pharmaceutical companies do business.
“From a societal standpoint, the suit is already starting to have an impact we wanted when we started,” Smith said.
The suit is not only about recovering taxpayer money. The second thing parties in the lawsuit are asking for is to change the way pharmaceutical companies do business — such as manufacturing, marketing, and how the drugs are distributed, Smith said.
It’s possible that pharmaceutical companies could be incentivized not to come to an agreement and wait until the end of the year so that the cases can be tried individually, but Smith said these companies have an interest in not seeing these cases go to trial.
“By their own admission, these companies have engaged in criminal behavior,” he said.
In the past, Smith explained, some pharmaceutical companies were proven to be engaging in criminal behavior. They paid their fines and went right back to doing what they were doing before, which doesn’t set a good precedent for them.
“This isn’t like litigation where someone’s in a car accident and the trial is about running a red light. We’ve got facts where companies plead guilty, were investigated and fined and sanctioned by U.S. Department of Justice,” Smith said.
In addition, the widespread effect of the opioid epidemic would leave statistically few jurors not affected in some ways by opioid abuse, which would align sentiment against the pharmaceutical companies accused in the cases.
“We’re not trying to win the lottery,” Smith said. “We’re trying to clean up the mess they made in our backyard.”