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Opioid Litigation: To Sue or Not to Sue

February 15, 2018  |  GMA Office of the General Counsel
Many cities and counties across the country have sued opioid manufacturers and distributors for the expenses incurred by their community due to the overabundance of such painkillers and how they were marketed and made available. Such cities have had their law enforcement, courts, jails, and emergency services strained by the costs of responding to the opioid crisis. Other cities, although concerned about the effects of opioids in their community, have declined to sue because they cannot isolate the impact of opioids from other substances, including alcohol and illegal drugs, and have determined that any claim for money damages would be speculative.

Some of the cities and counties that have sued have taken action in state courts while others have sued in federal courts. The cases filed in federal court have been consolidated into multidistrict litigation (MDL) in the Northern District of Ohio to streamline discovery and pre-trial proceedings. This is because the defendants are the same, the claims are the same, and the basic facts are the same. MDL is not the same as class action litigation. In MDL, each city or county’s case remains separate and they can decide whether to settle or not. If the MDL produces a settlement offer that the city or county decides to reject, the case can come back to a federal court in Georgia for trial. However, just as with class actions, some MDL has been criticized for producing sizeable fees for the attorneys while providing less benefit for the plaintiffs.

There are several firms actively soliciting cities in Georgia to hire them to represent the city in opioid litigation.  GMA urges member cities to consult with their city attorney before deciding to join the litigation and before signing up with a law firm to represent their city in the litigation. City officials should also be aware of the terms and conditions of any legal representation and should stay informed on the progress of litigation.
The International Municipal Lawyers Association (IMLA) has produced a podcast providing background information about the opioid crisis and the ensuing litigation. GMA provides IMLA Lite membership benefits to attorneys representing Georgia cities with a population of less than 2,500 and encourages city attorneys to avail themselves of IMLA resources through IMLA Lite or by having their city join IMLA.