Duluth, others must decide whether to stay part of massive opioid lawsuit

DULUTH – Between the emergency room visits, 911 calls, social services and treatment and prevention programs, Jessica McCarthy expects the total costs of the opioid crisis in the region would be astronomical.

"I couldn't even imagine," said McCarthy, opioid technician for the Duluth police department, which sits in a county with one of the highest opioid overdose rates per capita in the state.

Now a deadline is approaching for Duluth and other local governments across the country to make a decision: How should they fight to get pharmaceutical companies — which they blame for creating an epidemic by flooding the market with prescription pills — to pay for it?

By Friday, municipalities and counties large and small must choose whether to stick with a federal class-action lawsuit. The choice raises questions they haven't faced in other legal action against tobacco companies because a judge in Ohio approved the use of a new settlement process that would negotiate on behalf of every municipality in the United States unless a local government decides to opt out.

"Essentially, you would opt out if you thought that you could do better on your own," said Nick Campanario, an assistant St. Louis County attorney.

The case hinges on the question of whether drugmakers and distributors, who have been accused of misrepresenting the addictive nature of opioid painkillers and failing to report suspicious orders, can be held liable for the crisis that has claimed hundreds of thousands of lives nationwide.

Already, some companies have settled cases in state and federal court, which legal experts argue indicates that they bear at least part of the blame. A federal class-action settlement in Ohio Judge Dan Aaron Polster's court could mean funneling billions of dollars to counties, cities and Native American tribes across the country — even those who have not filed suit against the drug companies. Staying with the class would not immediately affect governments' separate suits against companies, but it could lead to their dismissal in the future.

Hennepin and Ramsey counties and the cities of Minneapolis and St. Paul planned to remain a part of the class. Some city and county attorneys cited the sheer time and resources it would take to litigate on their own as reasons for staying in.

But Duluth and St. Louis County, as well as many other municipalities across the country, are weighing their options as the clock ticks down.

Cities and counties in other states hit particularly hard by the public health crisis, such as those in West Virginia and Ohio, have already dropped out of the class because they think they can win more money taking their cases to trial on their own. Others opted out with the hope of litigating in state courts, where they think local juries could be more sympathetic.

As local governments grapple with their choices, they face a slew of uncertainties, including whether the drug companies will agree to settle and whether the new negotiation structure, which would bind more than 30,000 local governments, can survive legal challenges.

"It's sort of a double-edged sword," said Elizabeth Burch, a law professor at the University of Georgia. "On the one hand, you get the benefit of collective action and of being able to create this massive, credible threat. That's versus the concern that you're going to be lumped in with all of America, and there's just not that much money that's going to be able to go around."

Some legal experts describe the arrival of opioid crisis in three waves: prescription pills, heroin and fentanyl.

Opioid-related deaths began to rise in the 1990s. Around 2011, early efforts to decrease the number of opioids prescribed made pills less available and more expensive. So those addicted turned elsewhere.

"The vast majority don't jump straight into injecting heroin," McCarthy said. "They first get Vicodin and Percocet and OxyContin and all that stuff."

From 2011 to 2015, St. Louis County had 10.7 deaths from opioid-related overdoses per 100,000 people, the second-highest rate in the state, behind neighboring Carlton County. The state average was 5.7.

McCarthy joined the police in January in a new role created to help overdose survivors find treatment programs and connect them with other forms of support, such as assistance with housing or legal troubles. Since starting, she has taken on 90 cases that require her to check on people regularly.

"It's completely unmanageable and unrealistic," McCarthy said. "We could use four people doing this job just in the area. There's just not enough funding."

Litigation is designed to give communities like Duluth money to support such efforts. Any settlement Polster's class reached would be divvied up between cities and counties based on the volume of opioids shipped to their locality, the number of opioid deaths that occurred there and the number of people who reported an addiction to the pills.

People like McCarthy say it won't be enough, no matter the number.

"The opioid epidemic is so heavily in the social conversations that people are having now that I think people get the false illusion that it's getting better," she said. "It may be in other parts of the country. But here, it's absolutely not. We have seen more deaths, more overdoses. There's still a lot of work to be done."

There are safeguards to ensure that a majority of municipalities involved in the class negotiation would be satisfied: Once attorneys reach a deal with a company, the thousands of cities and counties in the negotiation class would vote on it, and 75% would need to support it.

The opioid case highlights the tensions between state and local governments created during the $240 billion national tobacco settlements in the 1990s. City and county leaders across the country claimed that states redirected the money they received to pay off debts and fill potholes instead of passing it along to local treatment and prevention programs.

The new settlement structure aims to remove states from the middleman role they played in the big tobacco settlements. It has drawn protests from state attorneys general and legal challenges in the Sixth Circuit U.S. Court of Appeals in Cincinnati.

In the meantime, cities and counties have to decide by Friday whether to move forward with the class negotiation knowing that in the coming months a separate court decision could move everything back to square one.

"There are still so many moving parts," said Alexandra Lahav, a law professor at the University of Connecticut. "Either way could be risky. Local governments just need to make the best decision they can under conditions of uncertainty."

Katie Galioto • 612-673-4478