- Taylor Goldenstein American-Statesman Staff
Travis County will join dozens of other counties and cities throughout the country attempting to recover costs from the opioid epidemic by suing manufacturers, distributors and marketers of the prescription drugs.
“This has been a long time coming,” Travis County Judge Sarah Eckhardt said Tuesday. “This puts a very big strain on our criminal justice system as well as putting a big strain on our health community.”
Most of the specifics of the suit are still being worked out, officials said. Eckhardt said the county will work with attorneys to determine who will be named in the suit, what charges will be brought and when.
More than two dozen states, cities and counties, including several in Texas, have filed such lawsuits against pharmaceutical companies, claiming the companies aggressively marketed the drugs and lied about the risks to make money.
Upshur County in East Texas was the first Texas county to file suit in late September, and Dallas, Tarrant, Kendall, Kerr and Bexar counties have indicated they plan to sue as well. Eckhardt said Travis County will likely consolidate with other interested parties to form one suit.
Texas has not filed suit so far, but Attorney General Ken Paxton announced in June that he was joining a bipartisan coalition of state attorneys general to investigate whether manufacturers have used illegal methods to market and sell opioids and to determine their role in the crisis.
According to the federal Centers for Disease Control and Prevention, 91 Americans die every day from opioid overdoses, and deaths from prescription opioids, including oxycodone, hydrocodone and methadone, have more than quadrupled since 1999.
A University of Texas study in 2014 found that Travis County had an overdose death rate of 2.3 per 100,000 people, one of the lowest rates among large Texas counties.
Eckhardt and others have compared the wave of opioid-related suits hitting pharmaceutical industry to those that hit the tobacco industry in the 1990s, when cigarette companies agreed to pay billions of dollars in fines in the largest civil settlement in history.
Drug companies have largely denied wrongdoing. The Pharmaceutical Research and Manufacturers of America declined to comment Tuesday about the litigation targeting the industry, but the trade group issued a press release pledging to fund state and local programs and assist in policy changes to address the crisis.
“We are deeply committed to addressing the opioid crisis and advancing solutions that will make a meaningful difference for families and communities,” organization President and CEO Stephen J. Ubl said in the press release.
Some legal experts note a difference between the tobacco lawsuits, which involved customers using the products as intended, and the opioid lawsuits, which point to abuse of drugs beyond what a doctor prescribed, if a doctor prescribed the drugs at all.
“It is difficult to persuade courts that FDA-approved prescription drugs are defective and that their warnings are inadequate,” Richard Ausness, a University of Kentucky College of Law professor, told the Atlantic in June.
Scott Hendler, one of the attorneys hired by Travis County, emphasized to Travis County commissioners in November the harm he alleges the companies have caused by aggressively pushing drugs they knew were highly addictive, then leaving local governments and other agencies to deal with the consequences. Hendler argued there are similarities between pharmaceutical companies and drug cartels.
“The only difference … is that the drug cartels are distributing illegal drugs and the pharmaceutical industries are distributing what are legal but their methods are really illegal,” Hendler said. “They have created pill mills. They have marketed to physicians and prescribers in ways unheard of 10 years ago.”
Hendler said drugs that were developed for cancer-related pain have now been “repackaged and remarketed to people for minor back pain or post-surgical pain.”
The drugs are so addictive that abuse problems often result from legally prescribed drugs and cause addictions so unrelenting they often take months of rehabilitation to overcome, he said.
“I think that taking it on now to interdict the source of the problem is the way to combat it,” Hendler said.
Commissioners approved a resolution last month to retain the Lanier Law Firm; Hendler Lyons Flores PLLC; the law office of Richard Schecter P.C. and Reich & Binstock LLP to represent the county, and they revised the resolution Tuesday.
The attorney’s fee arrangement is 25 percent of gross recovery plus reimbursement of expenses, capped at 35 percent total, Eckhardt said. If the county prevails, fees will be paid only from what is recovered in the lawsuit, and no money will be paid from the county’s general fund or any special fund, according to the resolution.
If Travis County recoups any money from the suit, Eckhardt said, it would go toward criminal justice and social service programs related to the opioid crisis.
“This is not a lawsuit for profit,” she said. “This is a lawsuit in order to recover costs and address opioid addiction by Travis County residents from a public health perspective because this public health crisis has been created, in some measure, we believe, by practices of the pharmaceutical industry.”