In "race to the courthouse," lawyers urge Texas counties to sue over opioids

_{Editor's note: This story has been updated with a statement from John Parker of the Healthcare Distribution Alliance.}

Bill Bilyeu started receiving the Powerpoint presentations in October.

The administrator for Collin County, north of Dallas, found the slides interesting at first, with their charts, numbers and logos from law firms seeking to sue opioid manufacturers on the county’s behalf. But Bilyeu soon grew weary, finding that none of the pitches seemed tailored to the needs of his suburban county, which had 85 drug-related deaths in 2016.

“It became like a TV commercial where I just don’t pay attention anymore,” Bilyeu said. “I was talking to attorneys and being polite, but now I even tell the secretaries, ‘We don’t have an interest, thank you.’”

County and city governments across Texas have been the focus of a legal feeding frenzy as law firms vie to represent them in lawsuits against pharmaceutical companies over the nation’s deadly opioid crisis. The firms say the companies oversold the drugs' benefits for treating chronic pain and have downplayed the risk for addiction.

There were more than 42,000 opioid overdoses in the United States in 2016, according to the Centers for Disease Control and Prevention. Deadly opioid culprits include prescription painkillers such as Hydrocodone; Oxycontin; fentanyl, a synthetic drug; and heroin. While there’s been focus on states like Kentucky, Maine, Ohio and West Virginia for the opioid crisis, 1,107 Texans died from opioids in 2016.

Lawyers say they want to hold the companies accountable for that epidemic and help governments recoup the cost of combating and treating the opioid crisis in their areas. But the firms might also see the potential for a financial windfall similar to the $15 billion settlement the state won from suing tobacco companies in the 1990s.   

Currently, individual cases have been absorbed into one multi-district case under a federal judge in Ohio.

Law firm presentations and informational packets obtained by The Texas Tribune show lawyers urging officials to act quickly. One document describes it as a “race to the courthouse.” Another declares that “inaction is action.”

The presentations show colorful charts and data from the CDC and the Substance Abuse and Mental Health Services Administration, and links to national media coverage of how opioids have impacted communities. Other documents show law firms pointing to examples of prior cases against some of the pharmaceutical manufacturers and distributors as evidence of success.

The big selling point in all of them: Get pharma to pay for your troubles. Lawyers are enticing counties to sign on to try to recoup costs for health care, criminal justice, lost productivity and more.

In October, Upshur County became the first county in the state to sue. The defendants named were a long list of big pharma players: Purdue Pharma, Endo Pharmaceuticals, Pfizer, Janssen Pharmaceuticals, Teva Pharmaceuticals, Allergan, AmerisourceBergen Corporation, Cardinal Health, McKesson Corporation, Abbott Laboratories and Johnson & Johnson.

John Parker, the senior vice president of the Healthcare Distribution Alliance, a national trade association representing drug distributors, said in an emailed statement that the opioid crisis is a "complex public health challenge." 

"Given our role, the idea that distributors are responsible for the number of opioid prescriptions written defies common sense and lacks understanding of how the pharmaceutical supply chain actually works and is regulated," Parker said. "Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation.”

Matt Daniel, a partner with Ferrer, Poirot & Wansbrough in Dallas and co-counsel for some of the counties considering lawsuits, said the competition for clients is stiff and that convincing county officials to hire them is no easy task. He is partners in the case with Matt McCarley of the Dallas firm Fears Nachawati, and another firm in Maryland.

Daniel said he tells officials that pharmaceutical manufacturers and distributors are to blame for the crisis and that taxpayers have had to shoulder the costs of paying for people living with addiction. He also makes sure officials know they won't have to spend anything. 

Some county officials have responded that “we’re not really the suing people.” Officials have also asked whether Daniel’s firm can handle this kind of litigation and — in moments of honesty — whether the cases would hurt or help in upcoming elections.

So far, Daniel has been hired by Rockwall, Brazos, Stephens, and Kaufman counties.

“Every lawyer goes to law school saying, ‘I want to help people,’ and in this instance they really are,” Daniel said. “This is an opportunity as a group to say that we can change the world with this.”

But in conservative Texas, not everyone is on board.

Lucy Nashed, communications director for powerful business group Texans for Lawsuit Reform, said “regulation through litigation is often not effective” and that the rise in opioid lawsuits is being fueled by lawyers’ quests to find the next tobacco settlement. She said a settlement through the opioids lawsuits does not mean there will be a public policy change and “doesn’t break the cycle of addiction.”

“The way I see it is that litigation is good for assigning a blame and assigning a consequence for an action,” Nashed said. “But it’s not necessarily good for describing a future solution or coming up with public policy change. It’s only a partial solution to a bigger problem.”

Attorney General Ken Paxton is leading Texas into a 41-state investigation of companies that manufacture or sell opioids. Last fall, the states served investigative subpoenas or other requests to eight such companies and their affiliates, including some named in Upshur County’s lawsuit.

During a press conference last week with U.S. Attorney General Jeff Sessions about the opioid crisis, Paxton vowed to continue working on the issue.

“The opioid crisis demands the attention of federal, state, local and private sector leaders,” Paxton said. “My office will continue to do everything it can to protect Texans from the opioid crisis.”

Bilyeu said between 10 and 15 firms reached out to him, but the Collin County commissioners have said they don’t plan on suing.

“I don’t fault any other county for doing it if they can go back and find their expenses,” Bilyeu said. “We don’t run a hospital district, we don’t have direct admission data that says this was what it costs to treat people.”

For Howard County Judge Kathryn Wiseman, despite all of the lawyer requests to get on the county commission’s agenda to speak about representing them in opioid litigation, she’s not convinced about why they would participate. She’s also wary of the potential time constraints involved.

“They assure me that all of the information gathering and such like that would be done by them, but I know better,” Wiseman said. “I know it would involve someone’s time to look through these records. We're busy, we don’t have time to help them chase down information.”

Disclosure: Texans for Lawsuit Reform has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.