now includes fee agreement districts would sign with law firms if participating

UPDATED: Midcoast school districts poised to file claim in Purdue Pharma bankruptcy proceedings

Wed, 07/22/2020 - 12:30pm

MIDCOAST — Public school districts across the U.S.  have, or will be, filing claims in the National Prescription Opiate Multi-District Litigation against key players named in the nation’s opioid epidemic. 

In December 2017, a judicial panel on mulitdistrict litigation ordered the consolidation of nearly 200 opioid-related cases into multidistrict litigation in the U.S. District Court for the Northern District of Ohio. 

The lawsuits brought by municipalities across the nation allege improper marketing of and inappropriate distribution of prescription opiate medications around the country. 

The allegations, more specifically, include, according to Legal Executive Institute, “manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed (directly and through key opinion leaders) these drugs to physicians” and “distributors failed to monitor, detect, investigate, refuse, and report suspicious orders of prescription opiates.”

In November 2019, Chicago Public Schools, the nation’s third-largest public school district, filed a claim to add public schools to the multidistrict litigation arguing public school districts have had to foot the bill for additional special education and other related costs due to the opioid epidemic. 

Public school districts from Illinois, Florida, New Mexico and Kentucky have far filed claims as part of the litigation, while many other districts are planning to file claims ahead of a July 30 deadline, according to a memo circulated to school districts. 

“A major focus of these claims is the increased expense of special education and supplementary education costs caused by the growing number of children born with disabilities as a result of maternal opioid use during pregnancy,” the memo said. 

The Chicago Public School claim seeks more than $8.6 billion, according to Bloomberg Law, from Purdue Pharma’s Chapter 11 bankruptcy estate. 

The billions of dollars would be, per Bloomberg Law, for “providing special education and related services to children who were exposed to opioids before birth.” 

The law firm of Hughes Socol Piers Resnick & Dym (HSPRD) has spearheaded the efforts to add more participating school districts to the litigation. 

In the Midcoast, Regional School Unit 13, which educates students from Cushing, Owls Head, Rockland, South Thomaston and Thomaston, is set to decide at a special school board July 23 on filing a claim. The board was originally slated to vote July 16, but postponed the vote. 

RSU 71, serving Belfast, Belmont, Morrill, Searsmont and Swanville, is scheduled to have its school board vote on filing a claim in the proceedings July 27, just three days ahead of the July 30 deadline established by a judge presiding over the case.

Maria Libby, superintendent of the Five Town CSD, which oversees Camden Hills Regional High School, and comprises Appleton, Camden, Hope, Lincolnville and Rockport, and SAD 28, which includes Camden-Rockport Elementary and Middle schools, said July 15 she may also be filing a claim in the case, though noting she and her team had not had time to evaluate the decision. By July 19, she distributed amended school board meeting agendas for the July 20 meeting that included an item labeled “[p]ossible resolution to join” the litigation. 

Steve Nolan, the superintendent of RSU 40 serving the towns of Friendship, Union, Waldoboro, Warren and Washington, confirmed July 16 his district is exploring the filing a claim. 

Islesboro Central School Head of School Chuck Hamm said “not at this time” when asked July 16 if his school was entertaining the idea of filing a claim. 

Filing claims is an effort to recoup damages including the expenditure of public funds, as noted in an RSU 13 school board agenda.  

Filing the claim would also address the impact the opioid epidemic has had on students, teachers, staff, and the taxpayers of the public school district. 

“Given our recent discussions with our state and federal representatives in the House and Senate regarding dramatically increasing special education costs and the possible correlation and causation between the opioid epidemic (among other reasons) and the reason behind those costs such as increasing numbers as well as complexity throughout Maine this seemed like something the RSU13 School Board would want to entertain,” RSU 13 Business Manager Peter Orne said July 15.

Experts retained by the plaintiffs, the public schools already involved in the case, estimate public schools nationwide have incurred and will incur an increased cost of more than $22 billion for providing necessary support and services to students with prenatal opioid exposure, per the memo. 

“The past two decades have borne witness to a precipitous rise in the number of babies born with Neonatal Abstinence Syndrome (NAS), the addiction and withdrawal complications that affect children with prenatal opioid exposure,” according to the memo. “Children born with NAS are significantly more likely to be diagnosed with disabilities for which they require special education services and other behavioral and academic supports.” 

Participating school districts have filed claims in the related Purdue Pharma bankruptcy proceedings, and have secured an agreed order allowing participation in the ongoing mediation of the bankruptcy to advocate for the interests of the nation’s public schools. 

Miami-Dade Public Schools, the fourth largest public school district in the nation, is also among districts that have filed a claim. 

Five law firms have been assembled, by the legal team for Chicago Public Schools, to ask the court for permission to represent a national class of all public schools. 

“The law firms have the combination of public client, class action, multidistrict litigation and education law experience needed to successfully litigate this case on behalf of a nationwide class of public schools,” the memo reads. 

Costs of the litigation will be advanced by the law firms and the firms will operate on a contingency fee basis, per the memo. School districts, therefore, are to spend nothing out of pocket.

The only investment required by school districts, the memo notes, is limited personnel time to work with lawyers and experts gathering data and information on the opioid epidemic’s impact on the schools. 

 

Below is direct quote information circulated in the memo to school districts. 

Opioid manufacturers and distributors promoted these drugs for unintended use, flooding the market and leading to a massive and ongoing addition and overdose crisis

Prescription opioids have been shown to be extremely effective in addressing acute pain such as post-surgery or as part of end-of-life care for terminal cancer patients. They are, however, also highly addictive and therefore inappropriate for treatment of chronic pain. Patients build up a tolerance for opiates, and thus they become less effective over time, requiring increasing dosage in order to feel relief. Eventually after prolonged use, they stop working to treat pain altogether. Long before almost all patients reach that point, however, they have become addicted to these potent drugs. As those living in communities most affected by the opioid crisis are surely aware, opium derivatives and synthetics are almost perfectly addictive drugs, and it is extraordinarily difficult to end the addiction.

In the 1990s, pharmaceutical companies that manufacture and distribute prescription opioids began marketing the drugs specifically to be used by chronic pain patients. They did so by knowingly making false claims about the lack of addictive properties of these pills. In doing so, these companies conspired with selected doctors, medical boards, and advocacy groups, all of whom they compensated to generate reports, materials for distribution to patients, and presentations that peddled false claims regarding the addictive properties of opioids and their appropriateness for the treatment of chronic pain. These lies — created and sponsored by the manufacturers — were also used by distributors’ sales representatives to convince doctors and pharmacists to aggressively order and prescribe opiates for chronic pain. Sales representatives routinely downplayed or even dismissed the risks of opioid addiction for chronic pain patients and compensated doctors who prescribed the drugs with rewards including lavish events, meals, and even cruises.

As a result of the combination of extremely potent and highly addictive drugs being aggressively and effectively marketed as safe “wonder drugs” for the treatment of chronic pain, opioids became the bestselling and most widely distributed drugs in history, and the results have been the disastrous opioid epidemic which has ravaged communities across the nation.

Nationwide, fatal overdoses from prescription opioids more than doubled between 2005 and 2016. More than 218,000 people have died in the United States between 1999 and 2017 from overdoses directly tied to prescription opioids. Relatedly, the United States has seen a steep increase in cases of NAS, the diagnosis for babies going through withdrawal following prenatal opioid exposure. Prenatal opioid exposure is linked with developmental delays and intellectual disabilities. In 2016, the rate of NAS diagnoses in the United States reached 7 cases per 1,000 births, which was more than double the rate only 8 years earlier of 2.2 cases per 1,000 births, and the number of undiagnosed cases likely drives the rate much higher. The healthcare cost of treating NAS has also skyrocketed from approximately $61 million in 2003 to nearly $316 million in 2012.

 

Many public school districts have not filed lawsuits, but they have also suffered acute damages and deserve compensation 

School districts should be compensated for any expenditures they have incurred — and more importantly, for those they will incur for many years to come — to address the impact of the opioid epidemic on their students, teachers and others. Public schools as a group comprise the nation’s largest public employer and perform the essential function of caring for and educating most American children. While school districts have suffered significant damages because of the opioid epidemic, school districts have only recently begun to file claims against the defendants.

Damages incurred by school districts fall into at least two major categories:

1. costs of providing special education and other services to children born with Neonatal Abstinence Syndrome (NAS) as a result of their mothers’ opioid use during pregnancy.

• A high percentage of children with NAS suffer developmental delays and/or lifelong intellectual disabilities.

• Experts have estimated the increased costs to public schools of providing special education and other services to children with prenatal opioid exposure to exceed 22 billion dollars.

2. costs of providing healthcare, workers compensation and other services to employees who have used opioids for off-label purposes and/or become addicted to opioids.