TN AG: No Federal Suit against Big Pharma

Knoxville News Sentinel USA TODAY NETWORK - TENNESSEE

What was set to be a fierce legal battle over power — and money — in the effort to hold Big Pharma responsible for the costs of the opioid epidemic instead proved Thursday a ceremonial surrender.

Campbell County Circuit Court Judge John McAfee took to the bench Thursday for an unusual war between state prosecutors and the state Attorney General’s office over who has the power to sue Big Pharma for lying about the addictive properties of opiate prescription painkillers and distributors for pumping it to the addicts the drug created.

But within seconds, the battle was over. A representative of Attorney General Herbert Slatery’s office read a statement, with no recitation of law, and handed McAfee an order in which Slatery had agreed to back down.

State surrenders

“The proposed order results from our joint commitment to the people of Tennessee and recognizes that state and local cooperation is essential to combat the opioid epidemic ravaging our state,” the statement read.

Attorney J. Gerard Stranch IV also handed McAfee an order in which the DAs he represents agreed they wouldn’t try to legally commit the state to their lawsuit against opiate makers and distributors.

“We can go back to focusing on the wrongdoers, not infighting with the attorney general,” Stranch said after the hearing. “We look forward to moving the case to trial against the real wrongdoers as soon as possible.”

Slatery spokeswoman Leigh Ann Apple Jones said Thursday the attorney general has decided not to sue Big Pharma at all.

“We feel like state court is the best option,” Jones said.

Battle over power, bucks

Last year, Fourteen state district attorneys general representing 47 counties in Middle and East Tennessee filed suit under the Tennessee Drug Dealer’s Liability Act against opiate makers and distributors.

Big Pharma was already facing lawsuits across the country — sometimes by states, sometimes by counties or cities and sometimes by hospitals and nonprofits. The federal judiciary quickly began funneling cases into what’s known as a multidistrict litigation, or MDL.

But Slatery stayed silent, saying he was investigating whether Tennessee should join the effort.

Tennessee, though, is the only state with a law that makes drug dealers monetarily liable for the damage their “products” cause. Stranch is arguing Big Pharma and its partners in the supply chain are drug dealers.

The DAs contend any damages the lawsuit produces under that law would go directly into communities ravaged by the epidemic.

Powers butt heads

Nine months after the prosecutors — including 8th Judicial District Attorney General Jared Effler, Knox County District Attorney General Charme Allen and 9th Judicial District Attorney General Russell Johnson — filed their lawsuit, Slatery sought to shut it down.

He argued in a motion to intervene that the prosecutors didn’t have legal authority to sue Big Pharma — only his office could do that. The DAs called Slatery’s move a money grab to put any financial settlement with Big Pharma into state coffers, leaving local communities to bear the brunt of the epidemic without recouping any of its costs.

The DAs noted the state attorney general’s office under Slatery’s predecessor was part of a 2007 settlement with Purdue Pharma, the manufacturer of widely abused opioid OxyContin.

In that case, Tennessee received roughly $720,000 of the $19.5 million settlement. Of that money, $400,000 went to cover attorneys fees for the attorney general, the prosecutors said.

Hands in the federal till

Although Slatery now says he will not file a formal lawsuit, he has been tapped to lead a coalition of state attorneys general formed at the direction of a federal judge in Ohio who is pushing for a fast settlement with Big Pharma via the MDL.

Some local communities are poised to be a part of that MDL, too. The Knoxville firm Taylor & Knight, and Nashville firm Lieff Cabraser Heimann & Bernstein, have filed MDL actions against Big Pharma on behalf of several East and Middle Tennessee county governments, including Campbell and Scott Counties.

Big Pharma is facing the same legal fight Big Tobacco faced when evidence surfaced corporate leaders knew their products were addictive but hid that from consumers. States received the lion’s share of Big Tobacco settlement money and largely rolled it into their budgets rather than spend it on smoking cessation efforts or treatment of diseases caused by nicotine addiction.

McAfee on Thursday did not set any new hearing dates in the DAs’ lawsuit.

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