by CHRIS ROGERS
The Winona County Board tentatively agreed last week to sue the manufacturers of opioid painkillers over the local impact of the opioid addiction crisis. The county plans to hire a law firm to gather information from county staff before filing a lawsuit against the drug makers. The case will join several already filed by other Minnesota counties and hundreds of cases filed by local governments and states across the country. Government lawyers claim the suits are similar to 20th-century tobacco litigation: companies marketed a product as safe when they allegedly knew or should have known it was addictive and dangerous. By suing, Winona County leaders see the potential to recoup costs the county paid to jail opioid abusers, send them to detox, and place their children in foster care.
“We’ve got people on both ends of the system that are being damaged,” Winona County Commissioner Steve Jacob said last December, when the County Board first agreed to look into litigation. “First of all, we want to put a stop to opioid abuse, and if we do nothing, we’re doing nothing. On the other hand, you’ve got the taxpayers who are having to be responsible for those people. So it seems like, on both sides of the issue, we need to help those people [and] we need to help taxpayers. I don’t think we’d be doing a fair service if we didn’t look into this.”
Although local law enforcement has reported that methamphetamine and synthetic facsimiles are more prevalent, Winona County certainly has opioid abuse issues, as well. After commissioner Marcia Ward noted last year that many other counties were suing the companies behind drugs such as Percocet, OxyContin, and Opana, Winona County officials started looking into joining the wave of lawsuits. In December 2017, the County Board directed Winona County Attorney Karin Sonneman to solicit and vet various law firms’ proposals to represent the county. Last week, the County Board tentatively agreed to hire Minneapolis-based law firm Briol & Benson.
“It doesn’t cost you money out of your budget, but it costs you employees’ time,” attorney Mark Briol explained. Under a tentative deal, Briol’s firm will represent the county for free and take 25 percent of any damages awarded or settlements reached. The only cost to the county is the effort it takes to gather information on what costs the county has suffered as a result of opioid abuse.
Ward was worried that the effort would be arduous and questioned whether the county would even be able to come up with necessary information. Briol & Benson Attorney Mary-Cate Cicero said that while every county is different, at one smaller county, it only took a few hours of each department’s time to get what she needed. While Winona County does not currently track which criminal justice and social service system costs are related to opioids as opposed to other drugs, Sonneman told the County Board that sorting those out may not be as difficult as they might imagine. Commissioner Jim Pomeroy said the concern about staff time should not stop the county from moving forward. “I think we’re maybe kind of making a mountain out of a molehill,” Pomeroy stated. “Perhaps we should go along with this, and if some department finds it too onerous, they should bring it back to [county administration] or the board.”
In addition to trying to recover costs related to the opioid crisis, Briol said his firm would seek an injunction from the courts designed to curtail future bad actions by the drug makers. “We’re trying to stop the kind of marketing that they’ve been doing on these types of medication,” he stated. He noted that after the tobacco industry litigation, tobacco companies were required to change how they advertised their products. “It would benefit the county and the public at large to have more education, more warnings, and more understanding of what’s going on and not the same types of hard-pushing marketing techniques that the opioid manufacturers and distributors have been using with the intention of getting people hooked, so that once you’re hooked, you’ve got to start buying the product some place,” Briol stated.
Why are other counties suing manufacturers and distribution companies, but not doctors? commissioner Greg Olson asked. “Obviously, there are some prescribers that are at fault,” he stated. In some states — where there were egregious “pill mill” doctors prescribing opioids to anyone who asked — doctors are being sued, Briol responded. If there is evidence of a pill mill in Winona County, the county could sue that doctor, too, but so far, that has not been the case in other Minnesota communities, Briol’s partner, Scott Benson, explained. “Definitely there are doctors who are prescribing according to what the manufacturer recommended. We don’t see that overprescribing as being their fault,” Benson said. “The manufacturers were saying that these opioids were nonaddictive and this is how you prescribe it. It’s hard to bring fault against a prescriber when they were doing what’s recommended by a manufacturer. So we’re not bringing that case because we aren’t going to win it.”
Pharmaceutical companies have maintained that, properly administered, their opioid products are safe and effective treatments for chronic and severe pain. “Responsibly used opioid-based pain medicines give doctors and patients important choices to help manage the debilitating effects of chronic pain,” Janssen Pharmaceuticals spokesperson William Foster wrote in a statement this winter. “At the same time, we recognize opioid abuse and addiction is a serious public health issue that must be addressed. We believe the allegations in lawsuits against our company are both legally and factually unfounded.”
Briol and Sonneman will draft a contract for final approval by the County Board in the coming weeks. It may be months before a lawsuit is filed.