Authorizing Litigation Against Drug Manufacturers for Damages Resulting from Abuse of Opioid Pharmaceuticals

Mr. Wood distributed a confidential copy of notes taken from a staff meeting. He also asked Department Heads for their input and characterized their responses as being concerned about the amount of work that would be involved.

Mr. Burbank expressed concern that there may not be a good handle on the real cost; the cost to the public. Mr. Wood stated that if Tompkins County is the plaintiff then damages would need to be shown to the County and at this time he has no dollar amount as to what that could be.

Ms. Chock spoke of the misrepresentations made by the companies involved and that they should be held accountable for the damages to the public and the actual cost to the public. She supports the County participating in this but is concerned about the costs growing too large and it becoming a financial burden for the County. Mr. Wood stated the cost would be in hours by the Departments to provide the necessary information to make a determination of damages and usually there would be contingency with the law firm that represents the County containing no upfront actual monetary costs.

Mr. John suggested Committee members read the book entitled “Dreamland: The True Tale of America's Opiate Epidemic” by Sam Quinoes, a Los Angeles Times reporter, about this issue and how it has impacted state after state. He also spoke of an article in the New Yorker magazine regarding Purdue Pharmaceutical’s marketing efforts and the misinformation provided to doctors about the safety and non-addictive nature of opioids and the lack of studies they had claimed were completed to support the information. He believes this is the essence of the claim and the drugs will still be used by those who need them. He spoke of the lawsuit process and first a determination of liability will need to be established and then damages would be considered. The County would not be asked to provide the bulk of information until after a determination of liability was found. He explained that if there are a large number of other counties across many states involved in this lawsuit then a template of information needed to determine damages will likely be provided. He is supportive of the County considering this.

Mr. Klein asked if there was any way a law firm could penalize the County if they felt the County was not providing the information they needed and/or not complying with what they were requesting. Mr. Wood said the penalty would be not being able to prove the County's case and unable to move forward with the lawsuit. He spoke of the process involving the information the attorneys representing the County would want and the rules of discovery involving the information the attorneys from the other side may be requesting.

In response to a request made by Mr. Klein, Mr. Wood further explained what Mr. John had said about the lawsuit being “bifurcated”. He said the Pharmaceutical Companies have already made motions to dismiss and if they are granted then there will be no movement forward. He said if they are denied then the Pharmaceutical Companies will need to answer the Complaint that is very lengthy and will likely be served on the Parties named, which will likely contain a request for information from those parties. He said there is a chance the County could be asked to provide a significant amount of information before there is a determination of liability.

Ms. Kiefer inquired about the law firm that would represent the County. Mr. Wood said it is likely that the County will move forward with one of the two very qualified firms and the decision will likely be with the firm that has the more desirable retainer agreement.

Mr. Burbank is sympathetic to the social good of doing this and believes the financial gain will be minimal. He said this is still the right thing to do but is concerned that the Departments may be burdened since there is not overwhelming enthusiasm from them about this.

Mr. John spoke of a show on the Public Broadcast Station News Hour that stated the number of prescriptions issued for opiate drugs has not decreased since the Centers for Disease Control and Prevention (CDC) made a recommendation that continued prescribing of opiates should be reduced. He believes this will take years before the reduction is noticed.

Ms. Chock appreciates Mr. Wood bringing this to the Committee and has confidence that he will choose the best firm to represent the County.

Mr. Klein explained what was involved with this lawsuit.

Mr. Wood said this is not a class action suit. Lawsuits are being filed by each municipality and county. The cost that would be included is the work departments would be required to do in gathering information needed. The departments impacted would be Social Services, Public Health, Mental Health, Probation, and the Sheriff’s Office. It is possible that some of the records are not being kept in a way that would produce information needed. However, this could be an opportunity that may lead to a better design of the County’s reporting systems.

Ms. Kelles said another important point is the sharing information and collaboration between departments will be a benefit.

Ms. Kiefer said there are legal reasons to prescribe opioids; these pharmaceutical companies are marketing use in patients who do not necessary need them. She said she would like to change the wording in the last Resolved and MOVED to amend the resolution, seconded by Ms. Kelles, as follows:

“RESOLVED, on recommendation of the Government Operations Committee, That the County Attorney is hereby authorized to commence civil litigation against opioid manufacturers and others who have harmed the County through over-prescription and miss prescription of opioids by promoting the abuse of opioids and to retain counsel to represent the County in such litigation.”

Mr. John said there is appropriate use of opioids. The County wants to try to address abuse.

Ms. Chock believes the Committee purposely kept the word abuse in the resolution. The public has now learned that these companies have performed research, knew what the data said and still marketed these medications to doctors and misrepresented the research and profited off of those misrepresentations; therefore they promoted the abuse and over-prescription.

Ms. Robertson said she opposes the amendment as she wants to go after those who are guilty of abuse.

Ms. Kelles said pharmaceutical companies have relationships with doctors and the amendment most accurately represents what they are doing. They are not promoting abuse.

Mrs. McBean-Clairborne asked who “others” are that is referenced in the resolution. Mr. Wood said there are cases that involve doctors who are promoters of the drug; this is not part of the local case. For the most part this lawsuit is not against doctors.

A voice vote resulted as follows on the amendment: Ayes - 3 (Legislators John, Kelles, and Kiefer); Noes - 11. AMENDMENT FAILED.

Discussion continued on original resolution.

Ms. Black said she is uncomfortable with the amount of time it will take County staff to gather information and opposes the resolution for that reason. She believes the money spent on this by staff could be used for other purposes.

Ms. Kelles said if the County is lacking data, perhaps the lawsuit is the impetus to get the County to produce the data needed.

Mr. Burbank believes the data will be useful. He said New York State Association of Counties had a presentation about the opioid epidemic and one of the things that is really hard to know is the level at which it is happening.

Mr. John said it can be a real burden when a lawsuit is filed. He has read a lot of what is going on across the country with opioids and a lot of money is being spent to address what is going on because of opioid manufacturers. He said he will support the resolution. The rate of prescriptions is not going down. There is a lot of shame associated with opioid addiction; this lawsuit brings it out into the open and sends a clear message that this is not acceptable.

Ms. Kiefer stated for the record that she supports the County joining the lawsuit, but she doesn’t support the wording in the Resolved.