Canton joins opioid lawsuit
Canton’s board of aldermen/women James Markey (from left), Kristina Smith, Dr. Ralph Hamlett and Gail Mull sit onstage with Mayor Zeb Smathers (far right) at the Colonial Theater in November 2017. Cory Vaillancourt photo
Of all the victims of the nation’s opioid epidemic, probably the most overlooked are the municipalities that have to expend taxpayer-funded resources to deal with the problem.
Every time a police car is dispatched, it costs money. Every time a fire truck leaves the station, it costs money. Every time an offender is apprehended, adjudicated, incarcerated or placed under supervision — yep, all that costs money, too.
And it adds up, especially in small towns like Canton, but after a closed session meeting May 9, the town has decided to try to get some of that money back from the people who pushed the problem.
“Canton has chosen not to stand idly by in this national opioid crisis,” said Canton Mayor Zeb Smathers in a May 20 press release. “Canton has had to spend taxpayer funds to respond to this serious public health and safety crisis. We are going to fight this opioid crisis and combat the personal devastation we have witnessed right here in our community. We will lead the way in this litigation and have retained a number of North Carolina and national law firms to assist Canton in this effort.”
During that meeting, the Canton Board of Aldermen/women authorized attorney Paul Coates, a partner in the Greensboro law firm of Pinto, Coates, Kyre and Bowers, to file on its behalf a class action suit against the manufacturers and distributors of prescription opioids.
“There’s been a long history of some litigation and some regulatory action and fines involving the manufacturers and distributors of opioids,” Coates said. “Two years ago was when we got involved, as they were beginning to file lawsuits in Ohio and West Virginia. Ohio and West Virginia are hotbeds for the problem. When you look at the statistics and the maps, you can see how opioids have come down the Blue Ridge Mountains, and into North Carolina.”
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Coates said that statistically, in North Carolina there is almost one opioid prescription for every man, woman and child in the state.
“We say the industry has been flooding the market with way too many pills. People get addicted really fast — now I’m hearing as quick as seven days. Statistics that I have seen show that roughly 25 percent of people who get a full course of 30-day opioids will, in a year, still be taking opioids,” he said. “It’s just very highly addictive and can be very destructive to families, professionals, everyday workers. It knows no boundaries of socioeconomic class.”
Despite the groundswell of activity in Ohio and West Virginia, North Carolina has been hit especially hard and stands among states with the worst opioid problems in the nation. Canton’s press release says that from 2011 to 2016, more than 26 million pills were dispensed in Haywood County. That’s more than 36,000 a month, every month, in a county of 60,000 people.
“We got involved because I have a connection in West Virginia to a law firm I work with that is involved in the project, and I have been working for the last couple years with counties and some larger cities,” Coates said. “Then we got an inquiry from Canton about, ‘We have a problem and we want help getting it fixed. We want to address it diligently and help our citizens, but we’re just a small town. What can we do?’”
Coates said that’s when he talked to the town about being a plaintiff in a class-action setting where they would be a representative of small cities and towns across North Carolina.
The town, though, won’t be just any plaintiff — it will be one of the lead plaintiffs in the class action suit, which will focus more on small towns.
“They will have more of a say in what goes on in litigation than just a class member,” said Coates. “They will have more input into whatever potential settlement there might be. Also, it’s very typical that the court recognizes the lead plaintiff has more time in [the case] than someone who just joined the class, so they tend to get additional compensation as well.”
The suit, Coates said, would be filed in federal court, probably in Asheville. As a piece of multi-district litigation, the suit will be handled by a judge in Ohio, where more than 1,600 suits are now pending.
That judge will handle the discovery process and all of the pretrial motions, so results are consistent across the country.
Coates says he hopes that the lawsuit is filed fairly soon, and that there are three trials set in Ohio for October, called bellwether trials.
“The judge picks those to try, to kind of see what the lay of the land is, see what the jury is going to do, and there’s always a hope for a settlement at any time, before or after the trial, but realistically it’s at least a year to two years before there’s any real potential for resolution,” he said.
Damage claims will be based on the amount of taxpayer resources municipalities have spent fighting the problem.
“The damages a town like Canton has, you have the police department expending resources, as well as the fire department,” said Coates. “We’ve had some areas across the state say that they spend as much 10 percent of their budget just fighting the opioid crisis.”
Canton’s board of aldermen/women were quick to weigh in on what they see as an important issue; they know, by and large, that the lawsuit won’t stop the problem, and that it might not even be successful. Whatever the outcome, though, Canton’s leaders are more than comfortable with the tiny Western North Carolina town serving as a representative of rural America in the suit.
“Canton is the face of America,” said Alderman Dr. Ralph Hamlett, professor emeritus at Brevard College. “The U.S. is all about small towns and rural communities. It’s time for small towns to speak out and say, ‘enough is enough.’”
Alderwoman Gail Mull said it wasn’t about publicity, but instead about principle.
“We are not grandstanding here, but if we can put a face to this epidemic, then let it be ours. We must do something,” said Mull. “Doing nothing is not an option.”
Arresting opioid users — who can be difficult to rehabilitate — and traffickers who sell diverted medication isn’t a realistic option either, according to Alderman James Markey.
“In a sense, this crisis is something akin to fighting a fire at an oil well. You can spray and spray all day and night, but at some point you have to look to the oil man and ask why he refuses to turn off the pump,” said Markey. “It’s not a great analogy, but honestly this situation is not going to be solved by continuing to arrest and attempt to treat the countless members of our society who’ve fallen victim to these powerful and dangerous addictive drugs. People are profiteering on misery and despair and calling it medicine, and it is incumbent on all of us to take a principled stand and say enough is enough. As a board, this is our best way to do that.”
The suit itself won’t have much of an effect on opioid users, but is instead more about holding accountable the parties responsible for deliberately turning routine convalescence into a life-changing encounter with addiction.
“In our discussion about this, I was very careful to ask if our participation in this lawsuit could in any way offer the people on the other side a way out of answering for their roles in this crisis,” Markey said. “And really, the sad truth is that though the people at the very top acted with brazen criminality and reckless disregard for human life in the pursuit of their greed, they are almost certainly protected by corporate laws (that their lobbyists help get passed) which prevent them from being prosecuted and imprisoned for these crimes.”
Hamlett agrees that it’s the corporate entities behind the problem that bear most of the blame.
“The major pharmaceuticals, they have a responsibility for the epidemic that’s plaguing our nation. They didn’t reveal the addictiveness of the drugs that they were prescribing, so many people became addicted, for example with Oxycontin,” he said. “They were addicted before they knew it. With addiction, you always have a market.”
Alderwoman Kristina Smith also sees the fight against opioids as a local issue that goes far beyond substance abuse and crime.
“The board of aldermen and women are here to improve quality of life, be a voice for the community, drive economic development and ensure a positive and sustainable future,” she said. “We won’t be able to achieve any of those things if we don’t take a stand against opioid manufacturers right here at home.”
Coates said that he feels confident about Canton’s chances in the suit against opioid manufacturers and distributors.
“We believe in the case, we believe we have substantial evidence that they have created a crisis,” he said. “We hope they are held accountable and help pay for the solution.”
For Smith, it’s not as much about paying for the solution as it is paying back those who’ve already been dealing with it for years now.
“Our law enforcement officers, educators and nonprofits have been doing the heavy lifting,” she said. “This is what we can do as a board to recover those expenses related to opioid addiction to position us on a path for a better future.”
