“In my view, it’s the plaintiffs’ lawyers using local governments to hijack the sovereignty of the states and create ‘city states,’ ” said Dave Yost, the Ohio attorney general, who filed a letter critical of the plan. “But this is not the United City-States of America.”
The plaintiffs also intend their proposal to be a course correction to the Big Tobacco settlement, as well as a possible template for future resolutions in such public welfare areas as firearms, climate change and environmental pollution.
The 1998 Master Tobacco Settlement, which resulted in payouts of some $250 billion, was struck between five cigarette manufacturers and 46 states seeking reimbursement for their Medicaid programs for treating tobacco-related illnesses. But much of the money went to discretionary funds of state legislatures. Especially in the wake of the 2008 financial crisis, hefty amounts were redirected to balancing budgets and fixing potholes, rather than to local prevention and treatment programs.
Still bitter about those outcomes, communities whose coffers had been depleted by the opioid crisis decided to sign with private lawyers, circumventing the states.
Since 2013, when Chicago filed its opioid lawsuit, platoons of these private lawyers have taken more than 500 depositions, filed thousands of motions, read through more than 50 million pages of documents and analyzed raw code from the Drug Enforcement Administration about pill distribution. At Judge Polster’s direction, they have shared their trove with the states.
“None of the attorneys general complained while we were doing all that,” said Paul Geller, an attorney whose opioid clients include Los Angeles. “It kind of makes you wonder why seeking to organize for negotiation purposes all of a sudden crosses the line for them.”
Strictly speaking, the states, whose cases are in state court, have no say in the federal litigation. While all are suing some manufacturers, fewer are going after the deep-pocketed distributors, and fewer still have named pharmacy chains. With the exception of some states, including Oklahoma, Massachusetts and New York, opioid litigation by many attorneys general lags behind the federal cases.