TALLAHASSEE — Attorney General Ashley Moody wants the Florida Supreme Court to resolve a legal battle about whether hospital districts and school boards should be able to pursue opioid-epidemic lawsuits after she reached settlements with the pharmaceutical industry.
A panel of the 1st District Court of Appeal last month rejected Moody’s arguments that she had the power to enter settlements that would effectively trump separate lawsuits by local government agencies.
Moody’s office Thursday asked the appeals court to send the dispute to the Supreme Court, saying the panel’s ruling could cost the state at least $87 million and open a “Pandora’s box of problems for the state’s opioid-relief efforts and its litigation authority in future cases.”
The request, which is known as seeking certification to the Supreme Court of a “question of great public importance,” also said the case could affect issues such as the state’s massive 1990s-era settlement with the tobacco industry to recover smoking-related health care costs.
The three-judge panel of the Tallahassee-based appeals court on Aug. 14 overturned a 2023 decision by Leon County Circuit Judge John Cooper that sided with Moody’s arguments.
The panel ruled in favor of the Sarasota County Public Hospital District, Lee Memorial Health System, the North Broward Hospital District, the South Broward Hospital District, Halifax Hospital Medical Center, the Miami-Dade County School Board and the Putnam County School Board.
The local agencies are seeking to recover costs from drug distributors, manufacturers or pharmacies related to treating patients or educating children who have been affected by the epidemic. Moody argued the state’s settlements should override the agencies’ lawsuits.
“The attorney general does not have the legal authority to unilaterally dismiss, for example, actual and individual damages incurred by the two school boards for increased harms and expenditures for compliance with federal law for special educational needs for disabled students — disabled allegedly by the actions of the opioid (industry) defendants that caused the students or their parents to become addicted to prescription opioids,” the appeals court ruling said. “And this is but one example. The special hospital districts also assert individual and actual damages separate from the general public for harms allegedly inflicted by the opioid defendants that caused these hospitals to have to provide specialized medical care for opioid-addicted and harmed patients. It is not within the attorney general’s power to make such decisions.”
Moody’s office entered into seven settlements with a variety of companies — with each of the settlements including a “release” of claims filed by local governments. Some settlements resulted from multi-state litigation — what is known as a global settlement — while others came as a result of a lawsuit that the attorney general’s office filed in Pasco County.
The request filed Thursday said that if the panel’s decision stands, the state will lose at least $87 million in what are described as “incentive” payments. A brief filed last year said two settlements include base payments and incentive payments. The incentive payments are tied to participation in the settlements by local governments.
In last week’s document, however, Moody’s office also contended that “far more funding is at stake: For every dollar a (local government) subdivision recovers against the opioid defendants, an equal amount is subtracted from the state’s recovery. Seeing as many of the seven appellants (the local agencies) have already filed cases, the state stands to lose hundreds of millions in opioid relief.”
Moody in 2022 filed a lawsuit in Leon County circuit court against the hospital districts and school boards to try to prevent their claims against the industry. The lawsuit said Moody’s settlements would provide money for opioid treatment, prevention and recovery services and that money would go to communities throughout the state.
Cooper’s decision last year said the Legislature “specifically granted the attorney general authority to enforce consumer protection laws” and that Moody had the power to enter settlements that prevented separate claims.
“Allowing defendants (the hospital districts and school districts) to continue pursuing their subordinate opioid claims threatens Florida’s sovereign interest in vindicating its citizens’ rights — all of its citizens’ rights — when confronted with societal harms such as the opioid crisis,” Cooper wrote. “These are collective harms. They do not flow in an insular fashion to individual (political) subdivisions — the harms cross city and county lines. Indeed the opioid settlements consider the pervasive harms caused by the opioid crisis and apply a mixture of statewide and local solutions. … Defendants’ continued pursuit of their opioid claims in contravention of the opioid settlements jeopardizes the flow of tens of millions of dollars that will aid in the abatement of the opioid epidemic throughout the state of Florida.”
But the appeals-court ruling, written by Judge Brad Thomas and joined by Judges Ross Bilbrey and Thomas Winokur, said the Legislature has “assigned the rights of legal representation of claims to appellants themselves, not the attorney general.”
“In essence, the attorney general asserts the unilateral substantive authority to dispose of appellants’ claims on behalf of the people of Florida, notwithstanding the enactment of law assigning that authority to appellants,” the panel’s ruling said. “But the attorney general is the ‘chief state legal officer’ of the state, not the client. As the state’s chief legal officer, the attorney general has limited common-law authority … to litigate claims common to the state at large — and, of course, claims authorized by general law, and limited by that law — but not to control claims of appellants who assert unique and individual actual damages.”