AG wants Oklahoma City to reconsider filing own opioid lawsuit
The Oklahoma City Council will be taking a major gamble if it decides to opt out of the state's lawsuit against opioid manufacturers and file a lawsuit of its own, warns Oklahoma Attorney General Mike Hunter.
Because of legal powers the state has but cities do not, the city could be greatly limiting any damages it might receive, Hunter and his legal team said.
However, an attorney for the city says sticking with the state's lawsuit also would be a gamble. Even if the state wins its case, there are no guarantees concerning how Oklahoma City would share in the proceeds, the attorney said.
Hunter and the state currently have a lawsuit pending against more than a dozen opioid manufacturing companies.
The lawsuit accuses the drug companies of making billions of dollars off the sale of opioids through fraudulent marketing campaigns that misrepresented the addictive properties of the painkilling drugs.
Because Oklahoma City is part of Oklahoma, the city's interests are currently represented as part of the state lawsuit.
However, the city has the option of opting out of the state lawsuit by filing a lawsuit of its own.
The city council has authorized the city attorney to pursue doing that by negotiating a legal services agreement and joining multidistrict litigation currently pending before a federal court in Ohio. A vote on the contract could come as early as July 31.
If the city takes that route, it will be giving up the ability to hold the drug companies jointly and severally liable for damages, said Reggie Whitten, a member of the state's legal team.
Joint and several liability is a legal term that means the entity filing the lawsuit is permitted to recover all the damages from any of the defendants found liable, regardless of how much each contributed to the problem.
The state has the authority to hold companies jointly and severally liable in Oklahoma, but cities do not, following the enactment of lawsuit reform legislation, Whitten said.
That could be an important factor in this case.
The Purdue group of drug companies is accused of starting the allegedly fraudulent opioid marketing campaign and had the largest market share in Oklahoma, so it could be argued the companies bear the greatest responsibility for the state's opioid epidemic, the attorney general indicated.
However, some of the other companies have much greater assets that could be used to pay potential judgments. It's possible that Purdue could go bankrupt or become insolvent, limiting the ability of entities to collect on judgments if they lack the ability to claim joint and several liability, Whitten said.
Other issues to consider
Wiley Williams, Oklahoma City's deputy city attorney, said the Oklahoma City Council and its attorneys are aware of the joint and several liability issue, but there are other issues that also must be considered.
One major issue is that there is no guarantee that Oklahoma City would receive a share of any money the state might receive if it wins its lawsuit, Williams said.
Whitten said the attorney general's office is in the process of forming an advisory committee composed of city and county representatives who will advise Hunter on what should be done with any monetary settlement obtained through the lawsuit.
Williams said that leaves a lot of uncertainty.
"They keep telling us that we will have a seat at the table, but that doesn't tell us today how much of that recovery, if they get one, we would get," Williams said.
"How do you know how that's going to play out three or four years from now?" Williams asked. "If they really wanted us to do this, they should have done all of this up front. They're putting us in a position: 'Trust us.' It's just a hard decision. It's very hard for the council to make."
Williams acknowledged that the state does have an advantage in its ability to claim joint and several liability, but said, "I think that's going to be a real hard battle to win, ultimately."
The city council weighed all the factors and then asked the city attorney's office to "go out and negotiate a deal with a firm that has the experience and capability of filing the lawsuit for us," he said.
That way, any damages the city might receive would clearly belong to the city, Williams said. The attorneys would be paid on a contingency fee basis.
Out-of-state attorneys, in-state attorneys and the state attorney general's office have all contacted Oklahoma City officials seeking to represent the city in litigation against opioid manufacturers, he said.
The city currently is negotiating with a team that includes the local Fulmer Sill law firm, a couple of McAfee & Taft lawyers, Alex Yaffe of the Foshee & Yaffe firm, and some out-of-state attorneys, he said.
Whitten said he believes the city is making a costly mistake.
"With all due respect, we think the city of Oklahoma City is making a bad legal decision," Whitten said. "What they're doing is leaving their fate to a bunch of out-of-state lawyers in Ohio rather than the attorney general and his legal team in Oklahoma."
Attorney General Hunter urged city officials not to act in haste.
"It seems to me that the city should consider calling a timeout so that we can do our best to address their concerns and vice versa," Hunter said. "I was the lead negotiator for the state in the successful water settlement negotiations two years ago. I think that turned out pretty well for Oklahoma City and I appreciated the trust and confidence city leaders had in me then and I hopefully will be able to renew that as we sit down to work through this issue in a thoughtful, responsible way."
Hunter was referring to the historic agreement signed in 2016 that enabled Oklahoma City to obtain the right to Sardis Lake water needed to meet future drinking water and economic development needs, while offering assurances to the Choctaw and Chickasaw nations that certain lake levels and stream flows would be preserved.
CONTRIBUTING: STAFF WRITER WILLIAM CRUM