Rutledge opioid suit bid rejected by court

In a unanimous decision Friday, the Arkansas Supreme Court denied the attorney general’s demand that a prosecuting attorney drop a lawsuit against opioid-makers that’s similar to her own.

The high court’s one-page formal order does not include an explanation of its ruling.

Attorney General Leslie Rutledge filed a lawsuit last month in Pulaski County against three opioid manufacturers that blamed the companies for fueling the opioid epidemic in Arkansas, where there are more painkiller prescriptions than people.

The other lawsuit was filed 10 days earlier in Crittenden County by Prosecuting Attorney Scott Ellington, representing the state, and a coalition of 87 Arkansas cities and counties. That suit targets opioid-makers, as well as distributors and retailers, for their part in the public health crisis.

In an emergency petition for writ of mandamus filed Monday, Rutledge argued that she was the state’s “chief law officer” and that Ellington didn’t have the authority to represent Arkansas in the litigation. Ellington is prosecutor for the 2nd Judicial Circuit, which covers Clay, Craighead, Crittenden, Greene, Mississippi and Poinsett counties.

Ellington responded to her petition Wednesday, asserting that Rutledge’s interpretation of the law was “cherry-picked” and that he had “concurrent power” to represent the state in litigation.

The justices sided with Ellington. After the decision was released Friday, the prosecutor told the Arkansas Democrat-Gazette that he believed that he “had the law on his side” and that he “was confident the Supreme Court would follow the law.”

“We fully believe that what these Arkansas counties and cities are doing on behalf of their communities is right and just,” said Chris Villines, executive director of the Association of Arkansas Counties, in a prepared statement released Friday. Villines’ organization is a lead plaintiff in the Ellington suit.

In a prepared response to the decision, Rutledge’s staff said that tens of millions of dollars are at stake and that the attorney general will “continue to aggressively pursue her case.”

“The Attorney General hopes that both lawsuits are successful in holding those responsible for the opioid crisis accountable and to provide much needed resources to the cities, counties and state to combat it,” the statement said.

The attorney general’s 52-page suit against the opioid-makers, filed March 29, argues that the sued opioid companies — Purdue Pharma, Johnson & Johnson and Endo Pharmaceuticals — violated trade laws by lying about the risks and benefits associated with their addictive painkillers through a deceitful marketing scheme for years.

She also claims that these companies committed Medicaid fraud since the state wouldn’t have reimbursed claims for these prescriptions if the opioid-makers hadn’t lied about the drugs’ effectiveness in chronic-pain patients.

Between 1999 and 2017, the state’s Medicaid program reimbursed pharmacies at least $6.2 million for prescriptions for opioids made by the three companies, according to an analysis of federal data by the Democrat-Gazette. Medicaid covered more than 670,000 individual prescriptions for those companies’ opioids during those years, the newspaper’s analysis shows.

Arkansas law says that actions under the Medicaid Fraud False Claims Act must be filed in Pulaski County Circuit Court if the defendants are out of state. Under that reasoning, Rutledge can’t join the coalition’s suit, which is filed in Crittenden County Circuit Court, her staff wrote in the response to the Supreme Court’s ruling.

The coalition’s litigation makes many of the same claims as Rutledge’s suit, but argues that opioid-makers were grossly negligent, caused a public nuisance and endangered the public health, welfare and safety of Arkansans.

Court records reveal that Rutledge and the coalition don’t agree on strategies for litigating against the opioid industry. Both sides lobbed criticisms at each other for contracting with private attorneys. The attorney general and coalition leaders, namely Villines and Arkansas Municipal League officials, also claimed they intended to sue the drug firms first.

Rutledge insists that having two separate suits hurts Arkansas’ chances of receiving punitive monetary damages.