County considers drug company litigation
ALAMOSA — Alamosa County may join other counties across the country in a multidistrict litigation against pharmaceutical manufactures and distributors. However, officials are waiting to see how Colorado counties and the Colorado Attorney General's Office act before making a decision.
During the Alamosa County Commissioners' Dec. 20 meeting lawyers Stephen Ochs and Patrick Mika of Ochs Law Firm from Colorado Springs approached the commissioners with the proposition to hire them as counsel for multidistrict litigation (MDL) against eight manufacturers and three distributors of opioids.
Using the Tobacco Master Settlement Agreement as a framework, Ochs wants to represent counties so that they can recover past and future public funds while penalizing the companies for negligence and intentional misrepresentation.
"Big pharma was very clever," said Ochs, a retired physician, in December. "They hijacked continuing medical education conferences, professional organizations and professional journals." According to Ochs, their marketing tapped into a social demand for immediate pain relief and caused today's opioid epidemic.
If they hired Ochs, the county's claim will be consolidated with others in Cleveland Ohio for the MDL and will be heard by U.S. District Judge Dan Polster. Ochs estimates that the suit would take roughly three to five years yet the county wouldn't have to pay legal fees unless funds are recovered. Ochs would take 25 percent of recovery funds and cap their legal expenses at 15 percent, essentially leaving the county with 60 cents of each dollar recovered.
"The average cost to the county is $18,000 per addict per year," said Ochs. "On a conservative side last year Alamosa County lost 1.75 million dollars."
The main monetary risk to the county would be if they were the only plaintiff. Then, all attorney fees are on them rather than being distributed among the counties.
At the December meeting no other county had hired counsel. Ochs wished for Alamosa County to come onboard before Jan. 9 to join the plaintiff steering committee.
"If Alamosa will be on that first trench of plaintiffs, the sooner you get in, based on our tobacco experience, the more control and more direction you have in terms of litigation and recovering your damages," said Ochs.
"We're going to bring them to their knees," added Mika. "The only way to change what’s happening to our communities is to hit them in their pocketbooks."
The board decided to hold a work session on Jan. 3 to discuss the issue before the imposed Jan. 9 deadline. Alamosa County Attorney Jason Kelly said this week that since the December meeting Mika told him they signed up Huerfano County and Alamosa County Commissioner Darius Allen said the law firm met with Pueblo County on Wednesday.
If the county chooses to get involved at all, they have to figure out whether to go with private counsel such as Ochs Law Firm or with Colorado's Attorney General's office. Both have their pros and cons in terms of resource strength and monetary outcome.
According to Kelly the AG is currently working on a state-level suit using the Consumer Produce Safety Act.
"One of the advantages with going with the state is that they feel like they'll be able to prevent an early dismissal of the case on motion for summary judgment or anything like that because they'll have been able to gather the necessary documentation," said Kelly on Wednesday.
However, the AG can't represent the county. If the AG pursues a suit, Kelly said it would play out like the Tobacco Master Settlement Agreement where the Colorado General Assembly was a client. This means the county would likely see less recovery funds.
"Yes there are avenues for us to get that money, but it is typically competitive," said Kelly. "Whereas if we're a named party perhaps we could control a little bit more. There would probably be stipulations on any sort of settlement that came through. It's probably going to be tied to treatment or different things and we would still have to show our damages. But, that being said, it would be noncompetitive."
Yet Kelly isn't keen on rushing to hire Ochs or any other law firm to file a federal lawsuit before Jan. 9.
"I'm not against hiring outside counsel. I just don't know if right now is the right time to do that," Kelly said. “There may be at some point a deadline to join the MDL but I don't think that's going to happen for some time...I don't think there's any huge benefit to gain by making a decision today."
Alamosa County Commissioner Michael Yohn, saying that he supported it, was the only commissioner to voice his opinion in favor of or against the suit.
"I never thought of going to the manufactures and suing them," Yohn said. "I guess that's one way of doing it and that's where the money is so when you look at it, it makes sense. Without having the money in the picture, the epidemic that we're into now, we have to pursue it any way that we can. The county has to get involved."
Because it was a work session the board made no official motion to hire legal counsel. According to Kelly, the AG office may have a joint meeting with all 64 Colorado counties to discuss the suit in the future.