LIHUE, Kauai — Kauai’s County Council voted Wednesday to sue the prescription drug industry for alleged liability for the opioid epidemic, choosing to litigate the issue on its own and not wait for the state of Hawaii. The county doesn’t trust the state to share any settlement money equitably.
The vote authorized the county attorney to spend as much as $25,000 to hire a law firm, but he said he probably won’t need the money because he’s confident that a large private class action law firm will take the case on a contingency basis.
On the mainland, hundreds of opiate liability suits have been filed against large drug makers, but only 82 of them have been on behalf of individual cities and counties. New York City, for example, is demanding $500 million in damages from drug companies. Suits filed so far have generally named multiple drug companies, including Purdue Pharma, Teva, Cephalon, Johnson & Johnson, Janssen, Endo, Allergan and Watson.
The litigation follows the pattern established by lawsuits filed against tobacco companies starting in the 1990s, which resulted in a national master agreement for a payout over 25 years. Hawaii’s share will eventually reach $1.38 billion.
Kauai County Attorney Mauna Kea Trask said his office is asking to move ahead on its own because it believes Hawaii’s tobacco settlement money has been dispensed disproportionately.
Meaningful amounts of the tobacco money never got to Kauai, said Derek Kawakami, a County Council member running for mayor and former member of the Hawaii House of Representatives. “Much of it was Oahu-centric,” he said.
“This (drug industry litigation) is the next frontier” after the broad success of lawsuits against tobacco companies, Trask said. “Hawaii is not isolated. We’re just as susceptible as anyone else.”
Said council member Ross Kagawa: “This is one time that I’m glad to be the first” into court.
Trask’s presentation showed that prescriptions for opiates paid for under the Medicare Part D drug insurance plan were unevenly distributed across Kauai. The county seat, Lihue and Eleele, toward the Westside, accounted for 70 percent of those prescriptions. Pressed by council members to explain the concentration, he said he had not been able to identify one.
In the council debate, the expression “David versus Goliath” came up on multiple occasions, but there was no serious opposition to Kauai proceeding independently. It was obvious it is an issue council members feel strongly about.
Council member Arthur Brun, who is himself from a hardscrabble Westside background, started to explain his support. But he only got as far as the words “knowing someone close to me” before he was overcome by emotion and had to leave the room.
In a related action, the council also agreed unanimously to increase spending on an eight-bed adolescent drug treatment facility that is going into construction by adding $2.4 million to the project budget, which previously had been about $4 million.
The cost increase drew scant opposition after officials told the council the overrun was related to required revisions in the plans. Kauai currently has no dedicated in-patient drug-abuse treatment beds.
Trask showed slides indicating that prescriptions per hundred thousand population for just one opiate, oxycodone, which had actually been in decline, began to spike upward in 2016, when they closely approached the statewide average of about 160 prescriptions per 100,000 people. Even though Kauai has a population smaller than that, such rate figures are almost always expressed as computed statistically per hundred thousand. Corresponding use on Kauai of naloxone, also known as Narcan, a drug that can be injected to reverse overdose effects, showed a six-fold increase between 2006 and 2016.
A spokesperson for the Kauai Police Department said it has decided to start issuing naloxone/Narcan to patrol officers. A training and deployment schedule is being developed.
American Medical Response, which provides ambulance service on Kauai, has been issuing Narcan to its crews for several years, but the firm did not respond to questions about when the practice began and how many times the drug has been used on Kauai.
“We believe that the effects of the opioid epidemic have been felt strongly at the county level,” Trask said. “The goal of the lawsuit on behalf of the county individually would be to leave the power of accepting a settlement and distribution of any recovery to the county, as opposed to giving control to the state.”
As evidence of the broadening opioid danger on Kauai, Trask said KPD officers recovered 520 grams (about a pound) of heroin in 2017, but that recoveries so far this year have already exceeded last year’s total, at 580 grams (about a pound and a quarter.)
“On Kauai, we have never seen that before, “ Trask said.
Abuse of prescription opiates and heroin addiction rates are believed by many drug abuse experts to be linked.
Trask’s charts showed that one of the opiate manufacturers, Purdue Pharma, has already paid $24 million in settlements. People familiar with the litigation believe totals recovered could eventually rival the tobacco master settlement.
Trask said he had been in touch with county attorneys in Maui and Hawaii counties. He said both told him they were considering proceeding as counties, or perhaps banding together, but not under state aegis.
He said he believed no Hawaii county is as close to becoming an actual opiate litigant as Kauai.
Trask said he had not notified the Hawaii attorney general’s office and had no plans to do so.
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