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Frosh seeks outside counsel to investigate opioid companies

Maryland Attorney General Brian Frosh notes that he believes daily fantasy sports constitutes illegal gaming in Maryland, but at times says the General Assembly needs to clarify the law and raises questions about whether new regulations implemented by the Office of the Comptroller ultimately even apply to the daily fantasy industry. (The Daily Record / Maximilian Franz)

Maryland Attorney General Brian E. Frosh. (The Daily Record / Maximilian Franz)

The Maryland Office of the Attorney General is seeking help from outside law firms to help in its ongoing investigation into opioid manufacturers and distributors.

The request for proposals for special litigation counsel was made Friday by the Consumer Protection Division, which has been investigating potential claims against drug companies since 2016.

“To comprehensively and timely hold responsible parties accountable and provide relief to affected residents, the Division requires additional resources to assist it in completing these investigations and in administrative enforcement litigation, if necessary,” the request states. “These investigations may require communications with other state, federal, and local governments and others interested in the public health.”

Written proposals are due June 18.

Attorney General Brian E. Frosh said in an interview Tuesday he expects a robust response to the request, likely from law firms already representing municipalities and states in lawsuits against the drug companies.

“We’ve received a lot of solicitations, suggestions, requests to come in and briefs us from firms that are doing this,” he said.

Six Maryland counties and four cities, including Baltimore, have filed their own lawsuits alleging manufacturers and distributors of drugs such as OxyContin knowingly misled doctors and consumers about the addictive quality of prescription opioids and manufactured a market by overstating their benefits for chronic pain treatment.

The local jurisdictions have all retained outside counsel on a contingency-fee basis, and many are involved in the federal multi-district litigation in Ohio, which includes hundreds of litigants from around the country.

The Maryland attorney general’s RFP specifies the special litigation counsel will be retained on a contingent-fee basis, Frosh said, because that is the model nationwide and what outside counsel are expecting to receive, Frosh said.

While Frosh has said he has not ruled out the possibility of filing a traditional lawsuit, the current strategy will involve filing individual administrative proceedings against the companies alleging violations of the Maryland Consumer Protection Act if it is determined enough evidence exists.

“Our thinking at the moment is it is probably most advantageous for us to proceed in administrative proceedings in Maryland,” he said.

Frosh added he is not aware of any other states pursuing opioid cases through administrative hearings but most states do not have Maryland’s administrative framework.

The potential allegations in Maryland will echo the lawsuits filed around the country, according to Frosh, with some more specific facts and damages unique to the state. Proposals are asked to address experience practicing before the Consumer Protection Division or the Office of Administrative Hearings.

“They have to be able to work within our administrative framework but otherwise it’s essentially the same cases that other places are contemplating or have filed,” he said.

Administrative filings will happen later than a lawsuit because discovery is done before the case is filed in administrative court, Frosh said. He declined to say when any proceedings might be filed.

“The cases are, shall we say, under construction already, but more discovery needs to be done in most of them,” he said.

Though Maryland is not involved in the federal multi-district litigation, Frosh said he and other attorneys general are keeping an eye on the proceedings in Ohio. With bellwether trials scheduled for next year, litigants could see rulings and verdicts on issues that resonate with their cases, even though none will be binding on whatever happens in Maryland.

“We all impact each other,” Frosh said. “If there’s a decision in some other court, obviously everybody is going to be looking at how that impacts the case that Maryland has or that Virginia has.”

Gov. Larry Hogan authorized Frosh in January to file suit, although the attorney general said he previously requested authorization to bring litigation. Frosh said Tuesday he received permission from Hogan to retain outside counsel.

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