Kentucky Gov., Attorney General Opioid Lawsuit Battle Goes to State Supreme Court

A feud between Kentucky’s top two elected officials – and potential adversaries in this year’s governor’s race – spilled over into the state Supreme Court on Thursday as lawyers argued about who controls the state’s lawsuit against manufacturers and distributors of highly addictive opioid painkillers.

Democratic Attorney General Andy Beshear has hired a group of private law firms, led by Florida based Morgan & Morgan, to sue nine drug companies for their role in the opioid epidemic that kills 23 out of every 100,000 people in Kentucky, or nearly double the national rate. So far, the group has sued nine companies, including retail giant Walgreens and pharmaceutical manufacturer Johnson & Johnson.

But Republican Gov. Matt Bevin’s administration is trying to cancel that contract, arguing it does not do enough to protect taxpayers in the event of a multimillion-dollar judgment or settlement for the state.

Complicating matters is the political feud between Bevin and Beshear, who could face each other in the November election for governor. Bevin is running for a second term in a contested primary, and Beshear is one of four candidates seeking the Democratic nomination to oppose him.

Kentucky is one of several states suing opioid manufacturers. But it’s one of the few states where leaders can’t agree on how to pursue those lawsuits. In Louisiana, Democratic Gov. John Bel Edwards and Republican Attorney General Jeff Landry went to court over who would manage that state’s opioid-related lawsuits. The two men eventually agreed to let the attorney general take the lead.

Bevin’s attorney Steve Pitt tried to frame the case as Beshear insisting he can spend public money without oversight from anyone else in state government. But Justice Lisabeth Hughes characterized the dispute as a “tug of war” between Bevin and Beshear over who would control, and get the credit for, the state’s lawsuits against opioid companies.

“The one thing everybody in the courtroom can agree on is we have an opioid crisis in this state. And on behalf of the people of the Commonwealth, we need people to work together responsibly to pursue legal action on behalf of the citizens of the Commonwealth,” Hughes said. “You’re going to have these tug-of-wars and the people of the state are going to be sitting back waiting for the tug-of-war to be decided.”

Pitt said the case was not a fight for power between the governor and attorney general, adding “we are all for the attorney general.”

“No one in this courtroom, or in this building, I dare say, is against suits against the opioid manufacturers to the extent they are justified,” Pitt said.

But Pitt said the contract with the law firms is bad because it does not cap the fees the lawyers could get if the state wins the case. Since Beshear awarded the contracts, the Republican-controlled state legislature passed a law capping attorneys fees for these type of contracts at a maximum of $20 million.

Beshear’s attorney, J. Michael Brown, called the Bevin administration’s attempt to cancel the contract “an attack on the Constitutional powers of the Attorney General.” He noted Bevin’s Finance and Administration Cabinet approved the contract, but then reversed itself after a panel of state lawmakers asked it to reconsider.

Brown said that kind of whiplash would hurt the Attorney General’s efforts to bring lawsuits.

“Are we turning over the control and supervision of a constitutional officer to another branch of government, to the governor in fact,” Brown said. “If we turn this litigation control over, there could be delay to no end.”

Pitt noted the governor and attorney general are not separate branches of government. They are both members of the executive branch of government, although they are elected independently of each other. Still, Pitt said state lawmakers decided to give oversight over all executive branch spending to the Finance and Admini