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Duluth, Superior may join St. Louis County in opioid suit

The cities of Duluth and Superior are preparing to join a throng of litigants seeking financial damages from companies that make and/or distribute prescription opioids. Duluth City Attorney Gunnar Johnson said he believes the two communities will be the first municipalities in their respective states to take such legal action.

Meanwhile, St. Louis County this week expanded the scope of a civil suit it had already filed against some of the pharmaceutical giants who have profited from the proliferation of addictive painkillers.

Both cities have monitored the evolving legal landscape, but Duluth City Attorney Gunnar Johnson said "for individual reasons, we've kind of sat on the sidelines until now."

The looming prospect that some of the involved pharmaceutical companies may seek bankruptcy protection was enough to spur Duluth and Superior to action, however.

"From a legal perspective, you want to have your claim in ahead of the bankruptcy, rather than after the bankruptcy," Johnson said.

Superior City Attorney Frog Prell concurred, saying: "It's best to be in at the front end if they're contemplating a bankruptcy move, rather than wishing you'd done something some months or years down the road."

To improve its odds of recovering funds even if some of the involved companies declare bankruptcy, St. Louis County has expanded its suit to include members of the Sackler family as defendants.

A suit recently filed by the Massachusetts Attorney General alleges that members of the Sackler family personally received more than $4 billion in profits between 2008 and 2016 from Perdue Pharma, the company that introduced OxyContin to the marketplace. Recent news reports have been rife with speculation that Perdue is on the cusp of declaring bankruptcy.

While Duluth and Superior will need to file separate suits as they are located in different states, Johnson believes there are still advantages to working together and retaining the same legal team. On Monday, both the Duluth and Superior city councils are expected to consider retaining the same counsel — Keller Lenkner LLC of Chicago.

"It works to coordinate and collaborate, because the opioid crisis in the Twin Ports has really impacted both of us as it has grown and changed," Johnson said.

Prell noted that the two cities already partner in the fight against controlled substances from a law enforcement standpoint through a joint task force.

"So, we are feeling and experiencing and responding to the same crises at the same times," he said.

In terms of the opioid epidemic, Prell said: "We also can join forces to a degree in taking stock of what our losses are, even though they'll be on different scales."

If both councils sign off on retaining Keller Lenkner, the firm will take the cases on a contingency basis. If the litigation results in a positive judgment or settlement, the firm would receive about one-third of the financial gain for its efforts, with the remaining two-thirds going to the cities. If the suits should fail, Johnson acknowledged there could be a modest financial risk that the cities would need to pay the cost of expert testimony and other incidental expenses.

Prell said the effects of opioid addiction have been far-reaching.

"I'm lucky to have not been impacted significantly by the opioid epidemic in my inner circle. But there's no shortage of good people who start out on this stuff, treating an injury from a car wreck or a sports injury and they end up fighting hard when it starts to run them instead of the other way around," he said.

Johnson said dealing with widespread opioid addiction has presented challenges for all sorts of city staff, including police, firefighters, custodians, librarians and park crews. Duluth reported five overdose deaths in January alone.

"This is a crisis that has really impacted the Twin Ports communities, and from where I sit, it has been painful to watch as it kind of tears at the fabric of our community," Johnson said.

Nationwide, legal suits continue to mount, with 30-plus states and about 1,400 cities and counties now having brought claims against the involved drug companies, including what have been called the "big three" distributors — Amerisource Bergen, McKesson Corp. and Cardinal Health.

If Duluth and Superior city councilors choose to join the legal fray, their cases likely will be heard among others in the Cleveland federal courthouse that's become a primary venue for the brewing battle.

Meanwhile, the national death toll continues to rise, with overdoses now claiming the lives of more than 40,000 Americans per year.

Prell referred to the many Superior firefighters who have dispatched to overdose scenes to administer life-saving Narcan as "just the tip of the iceberg."

"They try to prevent another life from going away on us. Then, you've got layers and ripples after that, with the recovery attempts and the loss of talent in your workforce and the lost productivity. It gets admittedly a little harder to measure, but it's no less real," he said.

Peter Passi

Peter Passi covers Duluth city government and community issues. A graduate of Carleton College, he has worked as a reporter for more than 30 years and joined the Duluth News Tribune newsroom in 2000.

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