Plaintiff’s attorney blames Indiana AG for trouble reaching opioid settlement

After Indiana Attorney General Todd Rokita used the announcement of the landmark $507 million opioid settlement to take a swipe at trial lawyers, one plaintiff’s attorney is hitting back, accusing the state’s top lawyer of nearly scuttling the deal that will be bringing much-needed funds to local Hoosier communities.

Rokita announced the settlement Wednesday, taking credit for convincing every city, town and county in Indiana to join the settlement. The money is part of the national $26 billion agreement that 46 states reached with drugmaker Johnson & Johnson and three major pharmaceutical distributors, Cardinal Health, McKesson and AmerisourceBergen.

Indiana’s portion of the settlement will be split between the state and local governments and provide payments for the next 18 years. The money will be used to address the personal and economic devastation caused by the raise in opioid addiction.

However, 74 Hoosier communities, including Indianapolis, Evansville and Allen County, initially declined to participate in the settlement. The lower participation rate threatened to reduce the state’s portion of the funds by $238 million.

Rokita blamed the low opt-in rate on the lawyers who were representing local governments in opioid lawsuits. He asserted the private attorneys were more interested in getting themselves “big paydays” than working in the best interest of the state.

Irwin Levin, managing partner at the Indianapolis law firm Cohen & Malad,  estimated to be representing 80% of the Indiana communities in opioid litigation, said the root of the problem was a “very, very bad law” backed by Rokita.

“This is not about attorney fees,” Levin said. “This is about how under the original statute no city and county could have participated in future settlements, which would reduce their ability to recover more money. Why would anyone opt in?”

As the $26 billion national settlement was being finalized, several attorneys general around the country began meeting with the trial lawyers in their states who were representing local communities in opioid litigation, Levin said. Together the states and private attorneys crafted memorandums of understanding for how the settlement funds would be distributed.

However, Levin said, Indiana’s attorney general bypassed the private attorneys and went straight to the Legislature. As the session was ending, lawmakers added language to the 2021 biennium budget without holding any public hearings or taking any testimony.

Under the 2021 statutory provisions, local government would have received just 15% of the settlement proceeds while the state received the rest with the bulk of the dollars going to the Family and Social Services Administration.

Also, local communities who joined the settlement were prohibited from pursuing additional lawsuits against opioid defendants.

Levin said the cities, towns and counties did not have much incentive to take part in the settlement. The local communities had no guarantees that any of the money going to the state would be used to help them. Moreover, by not participating in other litigation, they would potentially cut themselves off from additional money.

Levin said his team was part of the effort that tried to get Rokita to agree to changes in 2021. When that was unsuccessful, they returned to the Statehouse in 2022 and were able to make changes to the statute that ultimately got all the local governments to join the settlement.

“We’re proud of all the work that we and our clients did and we’re happy the Legislature responded so we can address the opioid crisis,” Levin said.

The changes were brought through House Enrolled Act 1193, authored by Rep. Michael Karickhoff, R-Kokomo.

Namely, the settlement money was split evenly between the local communities and the state. Of the dollars each local government is receiving, 15% can be used for anything and the remaining 35% must go toward opioid abatement.

Levin explained the 15% available for anything is meant to help cities and counties address what they may have been neglecting. Local governments have had to divert money and resources to law enforcement and treatment because of the opioid crisis, so the unrestricted dollars will enable the improvements and development projects have likely stalled to being moving forward again.

In regards to attorney fees, Levin said only the communities that filed their own litigation would be responsible for compensating the lawyers and they would only have to appropriate 8.7% of their settlement dollars to legal counsel.

Paul Wayman, president of the Howard County Commissioners, testified about the attorney fees during the House Ways and Means Committee hearing on HEA 1193.

Wayman reminded the lawmakers that his community and other communities started filing legal actions in 2017, a year before Indiana filed its first lawsuit. Also, the local governments would not have been able to seek legal remedies without the trial attorneys who provide their “expertise to pursue those who wreaked havoc on our state,” he said.

HEA 1193 passed the Legislature with strong bipartisan support and was signed into law by Gov. Eric Holcomb in March.

“This case is a poster child for responsible lawyering,” Levin said. “We obtained extraordinary results for our clients, the local governments. We had to, with the help of the Legislature, change the law so that is fair and our clients could participate, bringing in an additional $ 238 million to the State and then reduced our fees to get the deal done. There is no politics in this for us, (we were) just trying to accomplish the needs of the local governments and their citizens.”