DADE CITY, Fla. (Legal Newsline) - A Florida jury will hear evidence that the state’s attorney general once blamed weak regulatory oversight and the lack of a centralized prescription database for the opioid crisis, which it now blames on the Walgreens pharmacy chain.
Walgreens is the sole remaining defendant facing trial scheduled to begin Monday over whether it should pay the multibillion-dollar tab for drug treatment programs and other measures to combat opioid abuse and addiction. In a partial pretrial victory, the judge overseeing the case last week rejected the request of Florida Attorney General Ashley Moody to prevent the jury from hearing of the state’s own negligence in allowing the crisis to fester.
In court filings, the pharmacy chain cites comments by former Florida AG Pam Bondi, including a 2012 report in which she said, “Florida became the epicenter of prescription drug diversion” because the “state had weak regulatory oversight of pain management practices, limited oversight of physicians dispensing habits” and no statewide Prescription Drug Monitoring Program. Such programs, known as PDMPs, are considered a vital tool in preventing patients from obtaining multiple opioid prescriptions from different doctors, and helping pharmacists discover evidence of improper prescribing practices.
In 2010, 98 of the top 100 oxycodone-dispensing physicians nationwide lived in Florida, Bondi said. She cited “a rapid turn-around in my state’s ability to turn-off the prescription drug diversion spigot that had stayed open for far too long.” In 2013, she hailed “a great collaborative effort, beginning with Walgreens Pharmacy reporting prescriptions” to the Drug Enforcement Agency, for breaking up a “pill mill” operation.
Florida argued there was no legal standard for finding it liable for negligence over the opioid crisis and such evidence would be “a distraction from the jury’s task” of determining whether Walgreens was at fault. AG Moody also argued the state has no duty of care to its citizens, and therefore the question can’t be considered by a jury.
Florida also tried to bar testimony about how state officials publicly blamed a conspiracy by criminals in Mexico and China to flood the state will fentanyl, heroin and other illegal drugs. Pasco County Judge Kimberly Sharpe Byrd overruled AG Moody on that and in a second order last week allowed evidence of the state’s own contribution to the crisis.
At a hearing to discuss the state’s role, Judge Byrd said she would allow Walgreens to present evidence state officials knew about and criticized their government’s failure to curb abusive and illegal opioid prescriptions. But the judge said the jury won’t be able to assess comparative fault, or a percentage liability for the state as opposed to Walgreens.
“I don’t think you can assign a percentage to the state,” the judge said. “But I do think it can come in as failure to mitigate, and I do think it can come in generally under causation arguments.”
The other pharmacy defendants reached an $870 million settlement with the state last week, led by CVS, which agreed to pay $440 million. That settlement includes provisions for nearly $84 million in fees for private lawyers, including $42 million in fees for the state’s outside attorneys. Those firms are Kellogg, Hansen, Todd, Figel & Frederick of Washington and Florida lawyers Drake Martin Law Firm, Curry Law Group, Harrison Rivard Duncan & Buzzett and Newsom Melton. Some of those firms contributed thousands of dollars to AG Moody’s political campaigns.
Combined with $36 million in fees that drug distributors McKesson, Amerisource Bergen and Cardinal Health agreed to pay in January, the total fees due Florida’s outside lawyers now exceed $78 million. State law caps contingency fees for outside counsel in any matter, regardless of the number of cases filed, at $50 million total. In her May, 2018 legally required statement on why outside counsel were needed, former AG Bondi said the fee “will never exceed 3.5% of the state’s gross recovery on its monetary claims, well short of the limitations” of state law.
When asked for comment on whether the state will seek a reduction in fees, or why AG Moody appears to have agreed to a higher percentage than her predecessor, spokeswoman Kylie Mason declined, saying only the court will determine and award any fees.