By Aila Boyd firstname.lastname@example.org
The Botetourt County Board of Supervisors unanimously voted to give county administration approval to enter into negotiations with law firms in order to retain legal counsel for potential opioids litigation during last month’s Board of Supervisors meeting.
Michael Lockaby, the county’s attorney, was on hand and walked the supervisors through what the process of potentially pursuing opioids litigation would entail.
“The rationale behind these lawsuits is that a person who is addicted to opioids, or addicted to heroin as a result of first being addicted to opioids, didn’t really have a choice to become addicted,” Lockaby said. “They were told by a doctor that this was all going to be fine and it didn’t turn out fine. Oftentimes that doctor was told by the pharmaceutical manufacturer or wholesaler, ‘Oh, this isn’t particularly addictive. It’s not a problem.’ The information was inaccurate and oftentimes the person who told them that knew that it was inaccurate.”
Before filing suit, the county needs to determine the extent of its damages including both the human costs and monetary costs.
It was noted that officials from Botetourt County Public Schools, the Department of Fire and Emergency Medical Services, the Botetourt County Sheriff’s Office, the Commonwealth’s Attorney for Botetourt County, and the Department of Social Services have all agreed to participate in a damages assessment to determine the monetary strain that the opioid crisis has had on their resources. The assessment includes a thorough review of the county’s financial records.
Once a damages assessment has been carried out, the Board of Supervisors will decide whether or not to commence litigation. Lockaby explained that the report that will be the product of the damages assessment will not cost the county anything. However, by authorizing the damages assessment, the county is promising that if it decides to file suit, it will do so with whatever law firm was retained to complete the assessment.
The two firms put forth by county administration included Kaufman & Canoles, P.C. and Wagstaff & Cartmell, LLP.
Lockaby called both firms “perfectly competent” and “eminently qualified.”
Kaufman & Canoles is a Newport News-based firm and is associated with the national firm Sanford Heisler Sharp, LLC. from Nashville, Tenn. One of the potential benefits of selecting this firm would be that it currently represents over 40 different localities in Virginia, including most of the localities surrounding the Botetourt County.
Lockaby noted that the firm has done a “fair amount” of mass torts litigation, including asbestos litigation in the Hampton Roads area. “They know how this mass torts type of stuff works,” he added.
The strategy that Kaufman & Canoles would use if selected would be to file suit in Virginia state court and to keep the litigation in state.
Wagstaff & Cartmell is based out of Kansas City, Mo. The firm, which is associated with State Delegate Jeffrey Campbell and State Senator Ben Chafin, represents 20 localities throughout Virginia and hundreds of localities across the country.
The firm’s strategy is to file suit directly in federal court and have the case consolidated with hundreds of other cases from around the country in Cleveland, Ohio.
Both Kaufman & Canoles and Wagstaff & Cartmell are willing to accept the case on a 25 percent contingency fee. Lockaby explained that 25 percent was reasonable compared to most contingency fees. It was noted that Kaufman & Canoles is willing to take expenses on contingency as well, something that Wagstaff & Cartmell had not agreed to. With that being said, Lockaby added that an arrangement for a similar offer could possibly be negotiated. By taking the expenses on contingency, Kaufman & Canoles is agreeing that the county will not have to pay if the case isn’t decided in its favor.
Supervisor Ray Sloan of the Buchanan District said that he prefers Kaufman & Canoles due to the firm’s preference for keeping the litigation in Virginia. The other supervisors agreed that Kaufman & Canoles was their preferred law firm.
According to the county, over 60 localities across Virginia have either retained counsel or filed suit against opioid manufacturers pertaining to the opioids crisis that has swept the nation. Surrounding localities that have filed suit against opioid manufactures include Roanoke City, Roanoke County, Alleghany County, and the City of Salem, as well as the state Attorney General Mark Herrin.
Across the country, over 1,600 localities and 30 states have filed suit against opioid manufacturers.
In providing further insight into opioids litigation, Lockaby mentioned a recent settlement out of Oklahoma in which Purdue Pharmaceutical agreed to a structured settlement for $275 million. The settlement is a payout to several different trusts, Oklahoma State University Medical Center, and other entities over a period of years.
Oklahoma will also go to trial in state court in May against several other pharmaceutical companies. He explained that it’s expected to be a multi-week trial.
“I’m not hugely surprised to find out that Purdue was willing to settle,” he said. “In a case of this size, and with this many lawyers involved, they could easily spend $5 million to $10 million in legal fees between now and the end of the trial.”
Dr. Mac Scothorn, who represents the Valley District, made a motion to authorize the county attorney to negotiate with both firms and to eventually execute a retainer agreement with the preferred firm. Sloan seconded Scothorn’s motion before all five members of the Board of Supervisors unanimously voted in favor of the measure.