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Missoula County retains law firm, considers joining national opioid suit

Missoula County commissioners on Tuesday agreed to retain a Seattle law firm as it considers joining a growing national lawsuit against the manufacturers and wholesalers of prescription opioid drugs.

Keller Rorhback, which helped steer the class action lawsuit against Volkswagen over its emissions scandal and took the lead against Exxon in the Valdez oil spill, has enjoined a number of Western counties in suing Purdue Pharma and other manufacturers.

John Hart, deputy Missoula County attorney, said the contract with Keller Rorhback won’t obligate the county to file a lawsuit. Rather, it only sets the stage if the county chooses to do so.

“It’s simply stating that attorneys in the law firm will assist Missoula County in gathering information and relevant data to its potential claims, and advise the county with respect to those claims,” Hart said. “It’s not obligating us. It’s just taking the next step in that process.”

Keller Rorhback is already representing a number of other Western local governments, including Tacoma, Spokane County and King County in Washington, among dozens of others.

Since June, the firm has also been retained by a number of local governments in Colorado and New Mexico. Together, the jurisdictions are looking to hold opioid manufacturers responsible for “flooding the country” with highly addictive prescription drugs.

“If Missoula County was to pursue a lawsuit, we would retain the right to make all decisions based on our own needs, and we’d not be obligated to go along with the decision of the other local government entities that Keller represents,” Hart said.

According to the firm, which has established a robust opioid litigation team, the sale of prescription opioid drugs surged from less than $2 billion in 1995 to nearly $10 billion in 2015.

As a result, opioid overdose deaths have risen steadily every year, from roughly 4,030 in 1999 to 53,000 in 2016. More than half of all opioid overdose deaths involve a prescription opioid, the firm suggests.

“Fortunately, Missoula County isn’t the epicenter of the epidemic, but we are experiencing some of the problems from it,” Hart said. “There could be some creative solutions crafted in that global settlement. But for all intents and purposes, the lawsuit itself would be seeking money damages.”

Last December, Montana Attorney General Tim Fox filed suit against several opioid manufacturers, saying they misled patients and physicians about the drug’s ability to curb pain while failing to disclose its addictive powers.

Fox said an investigation conducted by his office alleged that Purdue Pharma had engaged in deceptive marketing practices since the 1990s. An estimated 700 people in Montana have died from an opioid overdose in the past 17 years.

Between 2011 and 2013, Fox added, prescription drug overdoses also sent more than 7,000 Montanans to the emergency room. Over that time, prescription drugs were responsible for 369 deaths in the state.

“The state’s complaint alleges this company has gone to great lengths to conceal the dangers of their product while misleading and exploiting physicians in a way that leaves thousands of addicts to depend on their drug,” Fox said when filing suit. “It’s time to put an end to this abuse.”

The state’s case was moved to a federal court in Ohio, though Fox won a victory in August when a federal judge in Ohio remanded it back to Montana, where Fox had originally filed it.

Hart said the county’s case would be filed in Missoula District Court, though it would likely be transferred to a federal court in Ohio.

“It’s been tasked with consolidating all of the cases that have been filed against opioid manufacturers and wholesalers for the purposes of pre-trial decision, and even some bellwether trials,” Hart said. “It’s not a pure class action, but we’re going to be lumped in with nearly every other jurisdiction and state government, and even individual claims in the Cleveland court.”

In representing Missoula County, Keller Rorhback is seeking a 20 percent contingency fee. If the county were successful, it would also seek to recovery fees and costs. What that would total isn’t yet known.

“They’re very unlikely to send Missoula County a bill for their out-of-pocket costs if they’re unsuccessful in recovering any money for the county,” Hart said. “It’s almost unheard of for a plaintiff’s firm to lose a case and be unsuccessful in litigation, and then turn around and send a client a statement for costs.”

Commissioners last November expressed reluctance in joining the opioid litigation. With Keller Rorhback now retained, they’re expected to make a decision by the end of this year on whether to file suit.