Medical records, subpoenas take stage in opioid lawsuit

Rain Smith • Feb 12, 2019 at 7:30 PM

KINGSPORT — Reaching some slivers of common ground was Judge E.G. Moody’s overriding theme Tuesday in Sullivan County Chancery Court, where council representing area district attorneys and opioid manufacturers argued over medical records, legal representation and subpoenas sent to county offices.

“I don’t think you’re really that far apart from a practical standpoint,” Moody said of the parties’ contentions.

In the coming weeks, each side will present proposals on their sticking points. Moody said he would review their materials to decide what was pertinent and how to proceed.

For much of the nearly five hours of arguments, two intertwined issues took center stage. During the last two weeks of December, attorneys for Purdue Pharma, Mallinckrodt PLC and Endo Pharmaceuticals sent subpoenas for deposition to county offices throughout Northeast Tennessee.

Targeted were public offices in the 1st, 2nd and 3rd Judicial Districts. That represents Sullivan, Carter, Johnson, Unicoi, Washington, Greene, Hamblen, Hancock and Hawkins counties.

In June of 2017, district attorneys in those jurisdictions filed a lawsuit against the drug manufacturers, seeking injunction and financial compensation for a “flood of opioids” into their communities. The effort was spearheaded by Sullivan County District Attorney General Barry Staubus.

The district attorneys are represented by Nashville-based law firm Branstetter, Stranch and Jennings. Managing partner J. Gerard Stranch argued Tuesday that the defendants were trying to “make a sideshow” by filing subpoenas on officials in the individual counties, as the DAs are working on their behalf.

The defense contends the locales are third parties in the lawsuit, as they have no binding documents showing legal representation by Stranch’s law firm. The issue was previously touched on in August of last year, when Moody dismissed the drug manufacturers’ third-party complaints that municipalities were accountable for opioid abuse.

Moody didn’t set a timetable for a decision on whether the subpoenas would be quashed — as sought by the district attorneys’ law team — but hinted the decision could have lasting ramifications and set precedent.

“The wording of any order the court gives needs to be thought through thoroughly,” Moody said.

The drug companies’ representation also filed motions to learn the identity of “Baby Doe.” Along with the district attorneys, the child is a fourth plaintiff named in the suit against opioid manufacturers. The child’s mother was reportedly addicted to opioids and the baby was born with neonatal abstinence syndrome.

Attorneys of the defendants acknowledged receiving files on many drug users from district attorneys regarding their criminal charges and the cases against them. They have now specifically requested any medical or additional county records on those individuals, along with specific prescriptions the plaintiffs believe were dispensed improperly.

Drug company attorneys say that without such information, they are deprived of due process and the manufacturers can’t adequately defend themselves from accusations.

About 60 million pages of documents have been sent to the law firm representing the district attorneys, according to the defense, but they contend the transfer of information has not been reciprocal.

Moody said it wasn’t the volume of documents provided that matters, but the relevance of the information that they contained. He also reiterated that the two sides didn’t seem far apart.

Attorneys for the district attorneys were told to submit a proposal on the records issue to the defense, who would review the proposal and send a response to Moody. Then he will decide how to proceed with the requests.

The head defense attorney declined to speak with the Times News at the end of proceedings. Meanwhile, Stranch concurred that the two sides were close on key issues and was hopeful the case would soon move forward.

“I’ve always said I thought we’d prevail,” said Staubus. “When we get over this hump, we’re going to head towards trial. And I think we can do that within a year.”

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