SPECIAL REPORT: The importance of state courts maintaining jurisdiction

Listen to this article

Marc Bern’s law firm has been hired by more than half the counties of South Carolina to file opioid lawsuits.

The New York-based law firm Mark J. Bern & Partners LLP has worked with a coalition of regional law firms to prepare opioid lawsuits in 24 of South Carolina’s 46 counties, as well as counties in other states across the country.

“Some of the counties have approached us and our team, and others we have made pitches to,” Bern said.

Charleston attorney Andy Savage said other lawsuits of this magnitude, such as tobacco and asbestos litigation, have been filed at the state level, which means local governments “just become a card on the table,” and the compensation that companies pay to states is never distributed to municipalities that feel the problem most acutely.

“We know the state costs of the opioids, the statewide tax dollars spent for the results of government intervention because of the opioid crisis, is minimal compared to the county,” Savage said. “The county’s responsible for EMS (emergency medical services), the county’s responsible for law enforcement, the county’s responsible for all sorts of paid-immediately expenses.”

Savage, who is one of the attorneys representing Dorchester County, said the law firms are approaching the opioid lawsuit differently from similar litigation in the past.

“What we have made the decision to do is not to represent as many states and big plaintiffs as we can, but to go and provide individual service to the individual counties based on expenses they’ve incurred and the damage that has been done to local governments by this crisis,” he said. “It’s a whole different way of doing things.”

Bern said the lawsuits have all been filed in state courts, because the federal cases are being consolidated and sent to the Northern District of Ohio. So far, Savage and Bern said the lawyers have been successful in keeping the lawsuits at the state level and out of the federal courts — for example, U.S. District Judge Timothy Cain ordered in May that a case brought by Greenville County should be heard by the state court, despite requests from defendants to remand it to federal court.

Bern said each lawsuit is slightly different — some counties are suing only Purdue Pharma; others, like Dorchester County, are suing more than 40 companies and individuals — but all of the counties are asking for damages and equitable relief to stop the distribution of opioids.

Last month, state Supreme Court Chief Justice Donald Beatty ordered that all discovery and pretrial motions for the S.C. counties’ cases will be handled by a single circuit court judge, Perry Gravely in Greenville County, to help keep rulings uniform and conserve resources. Beatty said in his order that all of the cases will be transferred to their original jurisdictions when it’s time for trial.

S.C. Attorney General Alan Wilson also filed a lawsuit in August 2017 against Purdue Pharma alleging that the company unfairly and deceptively marketed opioids in violation of a 2007 settlement with the state for similar conduct. That case is scheduled to go to trial in October 2019.

This story originally appeared in the Sept. 3, 2018, print edition of the Charleston Regional Business Journal.