Manufacturers, distributors of opioids ordered to reply to state complaint within weeks

By John Breslin | Aug 27, 2018

DADE CITY – Manufacturers and distributors of opioids have until next month to reply to a complaint filed by Florida that blames them, at least in part, for the epidemic of overdoses and deaths sweeping the state and country.

DADE CITY – Manufacturers and distributors of opioids have until next month to reply to a complaint filed by Florida that blames them, at least in part, for the epidemic of overdoses and deaths sweeping the state and country.

The lawsuit, filed by Attorney General Pam Bondi on behalf of the state in the Sixth Judicial Circuit in Pasco County, alleges that manufacturers, including Purdue, the makers of Oxycontin, deliberately flooded the country with “dangerous and addictive” drugs.

And, it is further claimed, the manufacturers delivered misinformation and used physicians to market the products, and that they were abetted by distributors.

The lawsuit in Florida, to be presided over by Judge Declan Mansfield, is just one of hundreds filed by states, counties and municipalities across the country against the manufacturers of opiods. Some, like in Pasco County, are individual, others are being swept up into multi-district litigation, with federal claims consolidated in Ohio.

Essentially, the lawsuits claim the opioid manufacturers, by marketing, distributing, and encouraging the sale of opioids for a wide range of pain, not just chronic, allowed a market to develop that led directly to the present crisis, where tens of thousands every year are dying, now mostly of illicit fentanyl and heroin overdoses.

In a statement to the Florida Record, the attorney general’s press secretary Kylie Mason said, “As this litigation is ongoing, we cannot comment further at this time.”

Mason referred to an earlier statement made by Bondi in which she stated, “We are in the midst of a national opioid crisis claiming 175 lives a day nationally and 15 lives a day in Florida, and I will not tolerate anyone profiting from the pain and suffering of Floridians.”

The complaint, she added, is designed “to hold some of the nation’s largest opioid manufacturers and distributors responsible for their role in this crisis and seeks payment for the pain and destruction their actions have caused Florida and its citizens.”

Apart from her own in-house legal team, Bondi has assembled a number of outside attorneys to help in the lawsuit, though none are known to be among the heavy hitting trial lawyers, including those who led the charge against big tobacco.

“I would never apply for that position or that task, and I don’t know any of the top-tier lawyers that would,” Steve Yerrid, a Tampa-based trial lawyer and part of the team that took on the tobacco companies, and won nearly $12 billion for Florida, told the Tampa Bay Tribune at the time the suit was first filed.

This is largely due to a 2010 law that capped fees for private lawyers at $50 million.

According to court documents, the manufacturers and distributors, including Purdue, Joihnson & Johnson, and Cardinal Health, must reply to the complaint by Sept. 17.

But the Florida suit, filed in May, is not universally supported, with some believing the state is going after the wrong targets.

William Large, of the Florida Justice Reform Institute, told the Florida Record: “I believe the lawsuit is without merit and the reason is the state is suing the manufacturers and distributors.”

He added, “Manufacturers of prescription drugs depend on a learned intermediary to identify known users at risk.”

The doctrine dates from a 1966 court decision, one now recognized by most states, that “the purchaser’s doctor is a learned intermediary between the purchaser and the manufacturer,” and that this provides some defense when it comes to product liability lawsuits.

Large believes a prescribing physician is in a better position to know what patients need and to know the risks associated with them.

“The individual that interfaces with the patient is the physician, the learned intermediary who communicates with the patient and knows the patient,” Large said.

“The state is focusing on entities with the least amount of information,” he said.

He added that the simple reason the litigation strategy is not focused on doctors is because “they do not have the deep pockets.”

“The case against the distributors should be dismissed absolutely,” Large said. “That has no merit.” 

He argued the the distributors were simply middlemen.

But the complaint states, “Defendants knew that opioids were dangerous and addictive; nevertheless, they collectively used front organizations that they funded to disseminate misinformation about the use of opioids for chronic pain treatment.”

Defendants also are alleged to have bankrolled medical professionals known as key opinion leaders (“KOLs”) to endorse and promote the use of opioids. The distributors were key players in marketing opioids, the complaint alleges.

The complaint further bluntly alleges that the “devastating opioid crisis” that caused 5.275 Floridian deaths in 2016 – 15 a day – was created by the defendants.

https://flarecord.com/stories/511544956-manufacturers-distributors-of-opioids-ordered-to-reply-to-state-complaint-within-weeks

 

Appeals court reverses controversial ant bite case

By Justin Stoltzfus | May 13, 2018

?The infamous $5 million Florida ant bite verdict has been overturned.

TALLAHASSEE – The infamous $5 million Florida ant bite verdict has been overturned.

A ruling handed down by the First District Court of Appeal reversed the large judgment won by Charles A. Lieupo, a tow truck driver who responded to a tractor-trailer crash involving Simon Trucking. Lieupo for six months said he suffered leg injuries due to fire ant bites, but in a lawsuit filed against the trucking company, he alleged he came into contact with battery acid.

The appellant court did not address the cause of Lieupo’s injuries, only that he was not entitled to file a personal injury lawsuit against the trucking company because his health issues were covered by worker’s compensation insurance.

William Large with the Florida Justice Reform Institute filed an amicus brief in the case, meaning “friend of the court.”

“I’m surprised it ever got this far,” Large told the Florida Record. “This case should have been disposed of by a motion for summary judgment in favor of Simons Trucking.”

Large pointed out that the case seems to hinge on administrative violations, which he said should not be a basis for liability verdicts.

“Administrative violations should form the basis of a fine,” Large said. “They should not be the foundation of a multimillion dollar liability verdict. Hopefully, the first District Court of Appeal has put an end to this.”

The text of FJRI’s amicus brief contends that section 376.313(3) of Florida law does not authorize a strict liability cause of action for personal injury damages.

The brief explains reasons for curtailing personal injury awards relevant to Lieupo’s specific case.

Has the ruling in the $5 million ant bite case put some of these types of legal questions to bed?

“I hope so,” Large said.

https://flarecord.com/stories/511415427-appeals-court-reverses-controversial-ant-bite-case

 

Legal advocacy group opposes legislation to repeal Florida nonjoinder of insurer provisions
By Karen Kidd | Feb 16, 2018

Legislation introduced in the Florida Legislature last month that would repeal nonjoinder of insurer provisions in state law is opposed by a legal advocacy group.

TALLAHASSEE — Legislation introduced in the Florida Legislature last month that would repeal nonjoinder of insurer provisions in state law is opposed by a legal advocacy group.

“Because this legislation would serve as an end run around the well-settled law that evidence of insurance coverage is inadmissible in liability trials, the Florida Justice Reform Institute opposes the bills,” the group’s President William Large said during Florida Record telephone and email interviews.

State Senate Bill 1452 and House Bill 6075, introduced by Sen. Greg Steube (R-Sarasota) and Rep. Heather Fitzenhagen (R-Fort Myers), respectively, would repeal provisions in existing law relating to the nonjoinder, or omission, of insurers from legal action.

Florida’s nonjoinder statute governs how insurance carriers are treated during civil actions in the state. In part, the statute permits insurance providers to include clauses in customer contracts that preclude individuals other than the insured from “joining” the insurance provider as a defendant in an action against the insured person prior to a verdict.

 Florida State House Rep. Heather Fitzenhagen (R-Fort Myers)

The statute also forbids mention of whether a defendant in a personal injury trial has insurance or very much information about what insurance the defendant may have. That provision under Florida law is crucial because a jury is more likely to side with a plaintiff in a personal injury action if jurors know that the defendant’s loss in the case likely would be covered by an insurance provider with resources to cover the verdict, Large said.

“Given this fact, it has long been the law in Florida that ‘evidence of insurance carried by a defendant is not properly to be considered by the jury because that body might be influenced thereby to fix liability where none exists, or to arrive at an excessive amount through sympathy for the injured party and the thought that the burden would not have to be met by the defendant,'” Large said, quoting existing case law that supports the statute.

SB 1452 and HB 6075 also would “circumvent” Florida’s Insurance Exclusionary Rule, detailed by the state Supreme Court in John Joerg, Jr., etc., et al. v. State Farm Mutual Automobile Insurance Co. in 2015, Large said. That rule says that evidence that monetary verdicts for plaintiffs in civil cases will be covered by collateral or third sources, such as insurance coverage, is not admissible during trial.

“In short, the insurance exclusionary rule and nonjoinder statute serve an important purpose, to ensure that juries base their verdicts upon legitimate grounds and not upon the improper belief that a judgment adverse to the defendant will be passed along to the ‘deep pocket’ insurer,” Large said. “A repeal of the nonjoinder statute would circumvent the insurance exclusionary rule by necessarily alerting the jury to the fact that the defendant is insured and any verdict may be borne by the defendant’s insurer.”

SB 1452 was filed in the state Senate Jan. 3 and was referred Jan. 12  to the Banking and Insurance and Judiciary committees and few days later to Rules as SJ 169. Meanwhile, in the House, companion bill HB 6075 was filed Jan. 9 and within days was referred to the Judiciary Committee, Commerce Committee and Insurance and Banking Subcommittee, where it still is. No further action has been taken on either bill.

https://flarecord.com/stories/511346114-legal-advocacy-group-opposes-legislation-to-repeal-florida-nonjoinder-of-insurer-provisions

 

by Michael Carroll | Jan. 24, 2018, 6:52am

TALLAHASSEE – A Florida Senate panel gave a thumbs-up Tuesday to a bill that would prevent property insurers from including attorney fees and other legal costs in their rate base, despite opposition from insurance firms and other business interests.

Insurers and business leaders complained before the Banking and Insurance Committee that SB 1168, authored by Sen. Greg Steube (R-Sarasota), would not do enough to reform the state’s controversial assignment-of-benefits practice. The AOB process allows policyholders to sign away their legal rights to third-party vendors, who often promise quick repairs to water-damaged homes.

But critics say property insurance rates have shot up in recent years because the vendors charge exorbitant rates, which insurers fight in court. If they lose, however, the insurers are on the hook for plaintiffs’ attorney’s fees due to the AOB process.

Steube emphasized on Tuesday, however, that his bill would invalidate AOB agreements unless specific conditions are met and includes the right of insurers to inspect properties in a timely manner.

An amendment authored by Sen. Doug Broxson (R-Gulf Breeze) would have more directly dealt with the AOB issue.

“It goes to the heart of the problem,” Broxson said of his amendment, “and that is litigation.”

Florida has too much litigation, and costs continue to go up, the senator said at Tuesday’s hearing. Courts have “overstretched” on the AOB issue, Broxson said, and it’s time that legislators designate the state’s one-way attorney fee provision for the named insured only – and not for third parties.

Business leaders testifying at the hearing supported Broxson’s amendment, though it ultimately went down to defeat.

Christine Ashburn, who oversees legislative affairs for Citizens Property Insurance Corp., said the company saw Broxson’s approach as a way to get at the root of the problem and hold down insurance rates.

“This would go a long way to settle the AOB crisis,” Ashburn said.

The amendment directly addresses the attorney-fee issue and Florida’s increasing insurance rates while still protecting consumers, said Carolyn Johnson, director of business, economic development and innovation policy for the Florida Chamber of Commerce.

But Jason Mulholland, speaking for the Florida Justice Association, said the Broxson amendment would go too far in restricting AOB rights.

“Other provisions build in delay and lock the courthouse doors to assignees,” said Mulholland, who urged senators to oppose the amendment and praised the Steube bill as fair to insurers, contractors and policyholders.

Others, however, characterized the AOB problem in Florida as largely the product of a small minority of law firms.

A study done for the Florida Justice Reform Institute found that 15 years ago, fewer than 8,000 AOB lawsuits were filed, according to Ashley Kalifeh, representing the Associated Industries of Florida. That number soared in 2017 to 130,000, more than half of all lawsuits filed against insurers, Kalfeh said.

Others at the hearing seemed more inclined to keep the debate going over the provisions of the Steube bill rather than seeing it die in committee. Sen. Rob Bradley (R-Fleming Island) said he would vote for the bill as a work in process, but Bradley would have opposed it if it were presented in its current form on the Senate floor.

“We’re trying to find solutions that are somewhere in between the bill before us for a vote and the amendment by Sen. Braxson,” Bradley said.

Braxson, however, sees Steube’s bill as having little effect on the state’s AOB problems.

“It appears to me that we’re kind of rearranging the chairs on the deck of the Titanic,” he said, rather than addressing the hole in the middle of the boat.

 

by Michael Carroll | Sep. 18, 2017, 7:02am

TALLAHASSEE — Florida insurance companies are warning property owners who sustained damage from Hurricane Irma to avoid fraud by not signing away their insurance rights to third parties.

The Personal Insurance Federation of Florida (PIFF) issued a similar warning last week.

NASA photo

“Homeowners should … be cautious of unscrupulous vendors promising free roofs or other quick repairs following the storm,” PIFF reported. “These vendors may state that signing an ‘assignment of benefits’ (AOB) is the only way to resolve an insurance claim without delay. However, an assignment is not required for work to begin.”

Insurers and business organizations have raised concerns in recent years about Florida’s AOB procedures, in which policyholders sign away their insurance rights to third-party vendors to accelerate the repairs to their homes.

But often the vendors charge the insurers inflated rates for the repairs, leading to lawsuits when the insurance firms balk at paying. That, in turn, can form the basis of lawsuits, and the insurer will be required to pay attorneys’ fees if it loses in court under current state law.

The Florida Chamber of Commerce reported last month that the misuse of AOB comes at a cost for all Florida ratepayers.

“This has led to rising insurance rates, in some cases as much as a 10 to 15 percent increase,” the chamber said in a news release.

Over the past decade, the number of AOB-related lawsuits in the state has skyrocketed, according to the chamber, which said that only 405 such legal actions took place in 2007.

“Today, there are more than 28,000 – a startling number that doesn’t bode well for Florida’s reputation as a ‘judicial hellhole,’” the chamber said.

William Large, president of the Florida Justice Reform Institute, echoed the warnings being given by insurers.

“In the wake of the hurricane, I think it’s very important that insureds call their insurance company if they have a claim, and they should not sign any assignment of benefit forms,” Large told the Florida Record. “Insureds should avoid signing a document such as an AOB form that would give their rights away to a third-party vendor.”

AOB continues to be a problem in the state, and policyholders who have sustained damage from Hurricane Irma should always call their insurance companies first, he said.

It’s currently unclear if the state will see a rising number of AOB cases as a direct result of damage from Irma.

“It is too early to tell if there is an uptick in AOB claims,” Michael Carlson, PIFF president, said last week in an email to the Record.“Carriers are just getting initial calls over the last couple of days and probably aren’t even seeing documents yet. … I suspect that by next week we’ll have a better handle on how these claims are evolving.”

Typical of the warnings issued by insurers is a post on the Heritage Insurance website. Customers will forfeit their right to receive any insurance payments if they sign an AOB form, the warning says.

“This may result in repairs not being made, theft of insurance payouts, unlivable conditions in your home, and it will complicate, delay, reduce and possibly result in the denial of a claim settlement,” Heritage said.

Amy Bogner, a spokeswoman for the Florida Office of Insurance Regulation, also said it was uncertain how big of an AOB problem may result from the hurricane. Residents should consult a fact sheet on the office’s website for tips on dealing with AOB questions, Bogner said.

“It is still very early in the claims process, and we do not yet know how many consumers may have utilized an assignment of benefits,” she told the Record in an email.

State Sen. Dorothy Hukill (R-Port Orange), said the AOB issue is a familiar one for her Central Florida constituents.

“Every time I talked to a group or talked to constituents, they were well aware of the issue,” Hukill told the Record.

The number of claims resulting from the hurricane will likely increase awareness of the AOB problems in the state, she said, adding that more lawmakers will likely be hearing about it from constituents as rebuilding efforts continue.

“I think the issue is gaining more and more traction,” Hukill said.

The lawmaker is the author of SB 62, which would restrict certain awards of one-way attorney fees generated through property insurance claims. It would also place more conditions on AOB contracts before they could take effect.

“Some people don’t realize that once they sign an AOB, they’re out of the loop,” said Hukill, who expects to see increased interest in her bill in Irma’s wake.

https://flarecord.com/stories/511215805-florida-insurers-caution-homeowners-against-signing-assignment-of-benefits