Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco

Considering the rate of opioid addiction and the rising death toll, this is good, very good. Mr. Moore, who, as Mississippi’s attorney general in the 90’s sued big tobacco companies and won, is now going after drug companies who make opioid pain killers. My very good friend’s adopted son, at only 26 years of age, overdosed on prescription opioid laced street drugs. A tragedy of gargantuan proportions. How many times has that repeated itself with young people in this country. I live in a pretty upscale neighborhood in Louisville, yet they have opened up a suboxone clinic quite close to us due to the magnitude of the opioid addiction crisis. So this is good, very good! More power to you, Mr. Moore!

https://www.wsj.com/articles/lawyers-hope-to-do-to-opioid-makers-what-they-did-to-big-tobacco-1500830715?mod=e2fb

The legal front widening against makers of opioid painkillers has something in common with landmark tobacco litigation of the 1990s: attorney Mike Moore.

As Mississippi’s attorney general in 1994, Mr. Moore filed the first state lawsuit against tobacco companies, saying they harmed public-health systems by misrepresenting smoking’s dangers. He helped marshal the subsequent spate of state litigation and then the talks that led to a $246 billion settlement.

Now Mr. Moore is a private attorney encouraging states to sue pharmaceutical companies, alleging they helped spark an addiction crisis by misrepresenting the benefits and addiction risks of opioid painkillers.

Mr. Moore pressed Mississippi and Ohio to sue drugmakers and is helping them with the suits they have since filed. The affable 65-year-old is tapping coalition-building skills he honed in the tobacco litigation to urge other states to sue, too. Recently two additional states, Missouri and Oklahoma, filed suits.

“When he’s motivated, you don’t want to be on the other side,” said James Tierney, a former Maine attorney general who later worked with Mr. Moore during the tobacco wars.

Mr. Moore is among many tort lawyers flocking to help government bodies seek damages from makers of opioid painkillers. More than a dozen cities and counties are suing, in addition to the four states, assisted by outside attorneys who include Paul Hanly Jr. of Alton, Ill.-based Simmons Hanly Conroy LLC and Linda Singer and Joe Rice of Motley Rice LLC, based in Mount Pleasant, S.C.

Like Mr. Moore, Mr. Rice has strong ties to the tobacco litigation, having been outside counsel to two dozen states and a lead negotiator in the settlement talks. Mr. Rice said he expects attorneys helping with opioid litigation to stay in close touch with each other, just as in the tobacco suits. In many cases they stand to win up to 25% of settlements or judgments.

Government bodies’ use of outside lawyers to sue for damages is criticized by the suits’ targets and by some conservative voices in the legal profession, who say the states are improperly outsourcing law-enforcement powers to firms that have a profit motive.

In New Hampshire, where the state hired an outside law firm to help investigate opioid marketing and potentially pursue litigation, the targeted companies filed a court challenge to the firm’s involvement, saying the contingent-fee arrangement “tainted” the investigation. The state’s supreme court last month rejected that challenge, allowing the law firm to keep working.

Mr. Moore, right, then attorney general of Mississippi, testified before the Senate in 1997 about a settlement between a group of states and the tobacco industry.
Mr. Moore, right, then attorney general of Mississippi, testified before the Senate in 1997 about a settlement between a group of states and the tobacco industry. PHOTO: DOUGLAS GRAHAM/CONGRESSIONAL QUARTERLY/GETTY IMAGES

Attorneys general who use outside lawyers say a contingent-fee arrangement can help them pursue worthwhile litigation they haven’t the resources to mount alone. In most such arrangements, outside law firms bear the cost of the litigation and are paid only if it succeeds.

More than 300,000 Americans have died of opioid overdoses since the late 1990s, according to the Centers for Disease Control and Prevention. Many public-health officials maintain that aggressive pharmaceutical-company marketing and lax prescribing helped cause addiction that for many people progressed to heroin and other illicit drugs.

Deadly Problem

As prescriptions opioid sales have increased, so have opioid-related deaths.

Prescription opioid sales in the U.S.*

$10

billion

U.S. opioid-related deaths per 100,000†

*Wholesale revenues †includes illicit opioids such as heroin

Sources: QuintilesIMS (sales); Centers for Disease Control and Prevention (deaths)

Drug companies targeted by the state, city and country suits include Purdue Pharma L.P.,Johnson & Johnson , Teva Pharmaceutical Industries Ltd. , Allergan PLC and the Endo Health Solutions unit of Endo InternationalPLC.

Asked by the Journal about the suits, Johnson & Johnson and Purdue denied the allegations. Both companies, as well as Allergan and Teva, said they are committed to the appropriate use of opioids. Endo declined to comment.

Ten years ago an affiliate of Purdue Pharma called the Purdue Frederick Co. and three of its executives pleaded guilty in federal court to criminal charges of misleading the public about the addictive qualities of Purdue’s painkiller OxyContin. Purdue Frederick and the executives agreed to pay $634.5 million in government penalties and costs to settle civil litigation.

The Mike Moore Law Firm of Flowood, Miss., is one of six retained by Ohio to work on an opioid civil suit that state filed in May. The firms are entitled to 25% of any settlement or judgment up to $10 million and smaller shares of amounts above that, to a maximum fee of $50 million, according to their contract with the state.

Mr. Moore said he isn’t pursuing the opioid litigation as “a money grab.” He said he is spending a lot of time advising on cases in which he has no financial stake because he wants to share his expertise to bring about a resolution. A young relative’s struggles with addiction also motivated him, he said.

“I want there to be a huge amount of resources available for treatment, and I want the industry to change its practices,” he said.

There is money to be had. Opioid painkillers are a $9 billion-a-year market in the U.S., and pharmaceutical companies have earned many billions from their sale.

Mr. Moore has been crisscrossing the country to meet with what he calls a coalition of two dozen lawyers to coordinate arguments and work with government lawyers. He has been reaching out to some state attorneys general and fielding calls from others.

On a recent morning, he convened a meeting with five other lawyers in Grayton Beach, Fla., a quaint seaside town on the Gulf of Mexico where three of them live.

Mr. Moore, right center, met with other lawyers in Florida in June to discuss ways to help cities and states sue pharmaceutical companies for costs associated with the opioid epidemic.
Mr. Moore, right center, met with other lawyers in Florida in June to discuss ways to help cities and states sue pharmaceutical companies for costs associated with the opioid epidemic. PHOTO: BRYAN TARNOWSKI FOR THE WALL STREET JOURNAL

Gathered in one lawyer’s home, the group discussed the potential for painkiller suits in the state. “We’re not sure if the AG of Florida is going to file litigation,” Mr. Moore said. He encouraged the lawyers to think more broadly. “Miami should file a case. Orlando should file a case. Panama City should file a case,” he said.

Mr. Moore noted that Florida’s Republican attorney general, Pam Bondi, is on a commission formed by President Donald Trump to address the opioid crisis. Mr. Moore advised one lawyer present— Bo Rivard, who is active in the state Republican Party—to get in touch with Ms. Bondi to see if there were ways the commission could help work toward a settlement with drugmakers or ways the lawyers could help the commission.

“If you could talk with Pam Bondi about it, I’ll call Roy Cooper, ” Mr. Moore said, referring to North Carolina’s governor, who is also on the Trump commission.

Mr. Cooper’s spokesman said the governor did speak with Mr. Moore about “strategies to address the opioid crisis” but they didn’t discuss litigation. Ms. Bondi’s office didn’t respond to a request for comment.

During the Grayton Beach meeting, Mr. Moore’s phone rang. “Hmmm, Mobile, Alabama,” he said, glancing at the number, one he didn’t recognize. He answered anyway, eliciting chuckles. “Mike always answers his phone,” said JoJo Tann, who grew up playing baseball with Mr. Moore’s son.

The caller wanted advice on filing personal-injury suits on behalf of people who became addicted. Mr. Moore listened patiently and then said, “The other thing I’d look at is opioid-addicted babies. In your town, in Mobile, there are probably hundreds, and people really care about it.”

He added, “There are people I know of working on those cases and I’d be happy to connect you.”

During the tobacco years, Mr. Moore used to pepper other attorneys general with calls and visits to prod them to sue cigarette makers, said Grant Woods, an Arizonan who was the first Republican state attorney general to file such a suit. Now his firm, Grant Woods Law, is among the six helping Ohio with drug-firm litigation.

Scott Harshbarger, a former Democratic attorney general of Massachusetts, remembers Mr. Moore urging him to sue the tobacco industry. Once he did, he said, Mr. Moore pressed for a meeting—during Mr. Harshbarger’s vacation—to discuss initial signs of a settlement. Mr. Moore says he wore a suit and tie to it; Mr. Harshbarger wore shorts.

“Mike was a real pioneer—he was very convincing,” said Mr. Harshbarger, who is now at the Boston firm Casner & Edwards and isn’t involved in opioid litigation.

Mr. Moore had gained national attention in 1994 when, as the Democratic attorney general of Mississippi, he filed the first state suit against cigarette makers. He helped popularize states’ use of outside counsel, a practice whose critics included the Republican governor of his own state at the time, the late Kirk Fordice. Mr. Fordice called it a gravy train for lawyers.

Among outside lawyers Mr. Moore hired was a law-school classmate and friend of his, Richard Scruggs, who went on to represent 30 states against tobacco companies, earning his law firm fees Mr. Scruggs estimated at $1.2 billion.

Lawyer Richard Scruggs, on left in 1998, was hired by Mr. Moore to work on tobacco litigation.
Lawyer Richard Scruggs, on left in 1998, was hired by Mr. Moore to work on tobacco litigation. PHOTO:DOUGLAS GRAHAM/CONGRESSIONAL QUARTERLY/GETTY IMAGES

Mr. Scruggs, who a decade later was imprisoned for conspiring to bribe a judge in a matter unrelated to tobacco, said the tobacco litigation was a risky undertaking, as previous plaintiffs had had little luck suing the industry. It was “really high-risk but high-reward litigation,” he said.

Mississippi ultimately received a $4.1 billion settlement from the cigarette industry. Mr. Moore said he hadn’t agreed to let the outside lawyers have a share of any settlement, and they ended up being paid separately by the tobacco companies.

Mr. Moore left the attorney general post in 2004. He got involved in opioid-painkiller litigation soon after, he said, when Simmons Hanly Conroy hired him to help with its cases against OxyContin maker Purdue Pharma. The 5,000 Simmons Hanly clients said they had become addicted after taking the medicine as prescribed. They settled with Purdue for $75 million in 2007, according to the law firm, around the same time Purdue’s affiliate and the three executives pleaded guilty to criminal charges.

Mr. Moore said his experience with the law firm’s opioid cases prompted him to push Mississippi to consider litigation.

His successor as Mississippi attorney general, Jim Hood, remembers Mr. Moore bringing up the topic when they were at a law-enforcement conference in 2007. They listened to a talk addressing Rush Limbaugh’s painkiller addiction, which the conservative radio host had said he developed after taking the pills for pain following back surgery. Mr. Hood recalls Mr. Moore saying, “Man, this is just going to be a huge epidemic,” and suggesting the state consider litigation.

Mr. Hood said that at first he couldn’t understand how “you sue someone for something that is FDA-approved.” After talking to physicians, he said he became convinced drugmakers were soft-pedaling the addiction risk.

In December 2015 Mr. Hood filed a suit that was drafted largely by Davidson Bowie PLLC, a Flowood, Miss., law firm run by a friend of Mr. Moore, John Davidson. The law firm’s agreement with the state entitles the firm to fees similar to those in Ohio but with no maximum.

Mr. Moore is consulting on the case. He said he had no agreement specifying how he would be paid. It “doesn’t concern me,” he said.

Mr. Moore donated $13,500 to Hood campaigns between 2008 and 2016, state campaign-finance records show.

Mr. Moore sought to persuade other states to sue, including Ohio. There the attorney general is Mike DeWine, a former Republican senator Mr. Moore knew from the tobacco-litigation days.

Mr. Moore and Mr. Woods flew to Ohio to talk to him. According to Mr. Moore, Mr. DeWine said he would get in touch if and when he was ready to move. Ohio filed an opioid-maker lawsuit on May 31.

Mr. DeWine said opioid addiction has sparked a huge public-health crisis in Ohio. Drug companies “helped create the problem, they misled people, and they need to be part of the solution,” he said.

Mr. Moore described Ohio’s lawsuit as a “clarion call to others that it was safe to jump in the water—Republicans, everyone.”

At the meeting in Grayton Beach, he said he was considering ways to bring suits against pharmaceutical distributors, too. Some states and counties have already targeted them for allegedly failing to control painkiller distribution.

Earlier this year, two distributors, Cardinal Health and AmerisourceBergen , agreed to pay West Virginia a total of $36 million to settle the state’s litigation alleging they didn’t adequately control distribution of prescription drugs including painkillers. Cardinal Health denied the allegations. AmerisourceBergen said it was working to “support appropriate access to medications.”

Mr. Moore said he is in touch with addiction-treatment experts to find out what they need to extend treatment to more people. The model for a settlement, Mr. Moore said, “has got to be all the company officials, the treatment community, everyone sitting around a table.”

The tobacco settlement was hastened across the finish line in part because industry whistleblowers stepped forward to say companies weren’t being truthful about nicotine’s addictive nature. The deposition of one such person, former Brown & Williamson Tobacco Corp. research chief Jeffrey Wigand, helped bolster Mississippi’s case. Mr. Moore played himself in the 1999 tobacco-litigation movie “The Insider,” re-creating scenes where he shuttled Mr. Wigand to court.

Asked whether any whistleblowers have surfaced to aid the opioid cases, Mr. Moore was cryptic. “There are some marketers and advertisers who have been helpful to us,” he answered. “That’s enough said.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s