Harris County, the massive Texas county that includes Houston, picked a successful page in its legal playbook by hiring Houston plaintiffs firms to represent it in litigation filed this month against opioid manufacturers and distributors.

Harris County's strategy of using plaintiff's firms for high-stakes tort litigation has worked before. In 1998, Houston lawyer Richard Mithoff secured a $2.2 billion settlement for Texas counties, including Harris County, against tobacco companies. Last year, Harris County hired Mithoff's firm and lawyers from two other Houston firms, Baker・Wotring, and Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, for vehicle emissions litigation against Volkswagen Group of America and Audi of America under the Texas Clean Air Act.

For the opioid suit, which Harris County filed Dec. 13 in state district court, the Harris County Attorney's Office hired The Gallagher Law Firm and Fibich, Leebron, Copeland & Briggs, both of Houston, and also Dan Downey, a former Harris County state district judge who has offices in Houston and Austin. All do tort litigation, and Mike Gallagher and Tommy Fibich, name partners in their respective firms, have extensive experience in pharmaceutical litigation.

Harris County alleges in the petition that 21 drug manufacturers, promoters or distributors, including Purdue Pharma, Janssen Pharmaceuticals and Abbott Laboratories, along with four “pill mill” doctors and a pharmacist, conspired to get residents of Harris County hooked on prescription drugs.

“These defendants successfully created and nurtured an environment in which opioid abuse was a virtual certainty,” Harris County alleges in the petition, adding that many individuals have turned to illegal drugs such as heroin after becoming addicted to prescription opioids.

“We accuse them of creating a public nuisance,” Harris County Attorney Vince Ryan said at a press conference on Dec. 13.

The defendants have not yet filed answers in the Harris County suit, but several pharmaceutical companies named as defendants have issued statements asserting they will vigorously defend themselves from the allegations. In one such statement, John Parker, senior vice president at the Healthcare Distribution Alliance, a trade association for drug distributors, said that the members understand the tragic impact the opioid epidemic has on communities and is taking steps to be a part of the solution. “But we aren't willing to be scapegoats,” he said. He also noted that distributors do not manufacturer drugs, market medicines, prescribe them or dispense them to consumers.

The damages in County of Harris v. Purdue Pharma, L.P., et al. are not specified, but Gallagher said the objective is to make the county whole for the costs of dealing with the epidemic.

The private attorneys leading the legal team will advance the cost of the expenses of the litigation, Gallagher said.

At a press conference on Dec. 13, Gallagher said the suit was filed in state district court in Harris County because the defendants need to answer to people in the community. Earlier this month, a federal MDL panel ordered nearly 180 federal suits filed by governments against opioid manufacturers and distributors to be transferred to U.S. District Judge Dan Polster of the Northern District of Ohio.

Gallagher is involved in other suits related to the opioid epidemic. He said he represents 14 other counties in Texas, including El Paso and Hidalgo, although not all have filed suits yet. He also represents the state of West Virginia.

The Gallagher Law Firm currently represents clients in litigation over drugs such as Trasylol, Vioxx, Zyprexa and Seroquel, and was involved in fen-phen diet drug litigation.

Fibich referred questions about the litigation to the Harris County Attorney's Office, but he said he decided to take on the case because he is a Houston native and considers any opportunity to do something for his hometown an honor.

Tommy Fibich

Fibich, who also did fen-phen litigation, has also done considerable pharmaceutical litigation in connection with drugs including Depakote, Actos, Topamax, Zyprexa, and successfully tried the first fentanyl leaking patch suit in Harris County. Fentanyl is an opioid.

John Odom, general counsel for the Harris County Attorney's Office, said the county considered a number of plaintiffs firms when deciding which to hire for the opioid suit, but looked specifically at trial and pharmaceutical experience.

“We wanted lawyers who literally go to the courthouse and try a case,” Odom said.

He also said Harris County filed in state court instead of federal court because the legal team was not looking to be involved in a federal MDL with other cities or counties.

Mithoff, the lawyer who negotiated the big tobacco settlement for Texas counties, said that while some of the litigation challenges are different, the opioid litigation has the same groundswell of public support that tobacco litigation did two decades ago.

He said the county's strategy of hiring plaintiffs firms for big tort litigation makes sense. For the tobacco litigation, Mithoff said, he initially did the work pro bono but the county later hired him on contingency.

Mithoff said the county hired his firm on a contingency for the Volkswagen emissions litigation. The suit is now part of the state MDL pending before a judge in Austin, and Mithoff is the lead lawyer on the steering committee.