Opioid Settlement Cases
June 11, 2020
In this episode we’re joined by Richard Ausness, a University Research Professor University of Kentucky’s J. David Rosenberg College of Law. Professor Ausness is currently examining the opioid litigation phenomenon and what it means for the future of opioid settlement cases. Following Professor Ausness we’re joined by Joan Arlinghaus, an advocate for and one of the principals behind Casey’s Law in Kentucky. Joan will be explaining the process for filing Casey’s Law and some of the common problems that can occur during the process.
Zach: Hi. I’m Zach Crouch and you’re listening to Landmark Recovery Radio, your source for addiction and recovery news and knowledge. You can find us online wherever you get your podcasts and please don’t forget to subscribe to get the most up-to-date information from leading experts.
We have guest Richard Ausness joining us on the show today. Richard is a University of Research Professor and Stites and Harbison Professor of Law at the University of Kentucky’s J. David Rosenberg College of Law. He’s been on staff at the University since 1973 and he’s also a member of the Florida Bar and he’s published several books, more than 70 law review articles as well. Professor Ausness is currently examining the opioid litigation phenomenon.
Richard, it is a pleasure to have you on the show with us today. This is a wonderful topic. I’m sure that it’ll generate a lot of feedback from our listeners and I’m looking forward to diving into the subject.
Richard: Thank you, Zach.
Zach: Just off the bat I’m curious. You’re examining this opioid litigation phenomenon. Tell us a little bit more what that actually means. What is the phenomenon behind this?
Richard: It’s similar to a number of cases that have occurred over the last 30 or 40 years involving the court claims against mostly product manufacturers such as tobacco, asbestos, handguns, and lead paint. The one thing about this that I think perhaps makes it a little different is the scale. There are well over 2,500 plaintiffs, state and local governments and quite a number of opioid companies as defendants as well.
There are just an awful lot of players in this and the stakes are quite high. If there is ever a settlement and I don’t know if there will be or not, it will be many billions of dollars because of course the opioid epidemic has been extremely costly both economically and in terms of ruined lives.
Zach: Among these plaintiffs that are coming forward, are these just people coming from all walks of life?
Richard: No. Actually most of the litigation involves governmental entities — states, counties, and municipalities. There were earlier a number of personal injury cases by individuals but they didn’t fare very well. I did a piece on that a little about 12, 13 years ago. Really about from about the year 2000 until maybe 2010 the opioid companies, they were mostly brought against Purdue Pharma and Purdue pretty much won in all of those cases.
I think it was because the victims were not all that sympathetic and the pharmaceutical companies, Purdue in particular were able to sort of typecast them as criminals and people who had only themselves to blame for their condition. That was of course terribly unfair, but it did seem to resonate with the courts. Most of the cases were dismissed.
One thing that might happen based on the experience with tobacco is the very same thing happened with individual plaintiffs in the tobacco litigation but once the litigation heated up and the government got involved, mostly states a lot of dirt came out and all of a sudden the smokers didn’t look so bad because of the manipulating the nicotine and what-not. The same thing may happen. We may get a whole bunch of individual cases as well and there are some class actions involving individuals, but I haven’t really followed those all that closely.
Zach: Can you tell our listeners, obviously I’m not a law guy; I know a little bit about the legal system, but what constitutes a class action?
Richard: A class action is it’s a way of consolidating a whole lot of similar cases so it makes it far more economical because you’ll have only one trial instead of perhaps thousands. You’ll only do it once. You don’t really litigate same issues time and time again. From the plaintiffs’ point of view, it allows them to sort of engage in economies of scale. They can band together and hire experts and it just makes financing a trial much more reasonable for them.
From the defendants’ point of view, at least sometimes they like the idea of rolling the dice once and getting a decision. Now having said that, a lot of class actions, probably most of them if they get that far will be settled because when push comes to shove neither side really wants to risk a trial.
Zach: Got it. Among these 2,500 plaintiffs that you noted and most of them are government entities, etc. what are they claiming against these companies? What are the states claiming? What are their bases on these lawsuits?
Richard: Actually before we even get into that, I should mention that there are actually several tracks that the case that I alluded to is what’s in multi-district litigation. There are a bunch of individual lawsuits that are pre-trial work is done in one court. They’re all transferred to a single court and then they do the pre-trial stuff, discovery and things of that sort, but there’s another track that’s going on as well, actually two other tracks. The states are not subject to this.
In other words, these were actions that were probably brought in state court by municipalities and counties and the defendants got them transferred into federal court. Once they got transferred into a federal court, they were subject to this further transfer under this multi-district litigation process.
On the other hand, the states are not subject to that because they are sovereign entities. Those cases are being tried in state courts which of course are much more friendly. Only one has actually gone to trial and that was in Oklahoma and there was a very large judgment. It was over a billion dollars.
On top of that, there’s a Purdue file for bankruptcy so each case is being handled by a bankruptcy court. You’ve got sort of three tracks going on. As far as the legal theories, I don’t get into that too deeply, but public nuisance seems to be the favorite. There are some others, too. They’re basically are doing, plaintiffs, that is that the marketing, particularly the marketing of activities where there’s interview were fraudulent created a public nuisance namely the opioid epidemic.
What they’re seeking, what the plaintiffs are seeking generally are the costs of abating the nuisance meaning treatment programs and things of that sort which then of course would be rightfully expensive.
Zach: Sure, absolutely. You’re obviously in the middle of all this. Do you have an opinion either way about the marketing tactics that have been brought forward from these large companies?
Richard: There’s no doubt that the marketing practices were unethical and in some cases illegal. Basically what they did was persuade doctors that opioids could be used to treat chronic pain even though historically they’ve only been used for short-term treatments, end-of-life type of situations. They misrepresented the effectiveness of opioids for this purpose and they downplayed the risks of addiction.
As a consequence, doctors all over prescribed opioids or prescribed them for minor pain and when better treatments were available and what we ended up with was thousands of people who are addicted and all of the consequences of that. That doesn’t mean they’re liable. There are lots of other issues that they presumably could raise that might get them off the hook.
Zach: I was going to say, Richard I remember one thing that sticks out in my mind is a…it was I think Purdue used it. It was something that was published and it might have been in JAMA, but it wasn’t even like a full-fledged research article meaning that there wasn’t really any scientific rigor behind the study. I don’t know if it was a study, but there wasn’t any replication of the results that they published this study or research article.
I think that they used a lot of that to make the case to these, whether it’s PCP doctors, etc. to use their product. Do you remember that?
Richard: I do. You’re exactly right. There were several instances of that, but the problem with doing that was that the research was mostly short-term. Obviously the addictive issue was more associated with longer-term usage, but they didn’t tell the doctors that that they were promoting the drug to. That was certainly one particularly egregious example of misrepresentation, but there were many others, too.
For example, they pretty much invented that concept called pseudo addiction meaning that if you showed signs of addiction you needed more opioids, not less. There was just no scientific foundation for that at all. It was that kind of stuff. I might add this is not the only instance of that. Drug companies have engaged in these phony publications to promote all sorts of drugs, not just opioids.
Zach: I’m going to ask a question here, too. I’m curious to hear from your perspective; because this is the early 1990’s I think when Purdue was really making the big push.
Richard: Right, yes, around 1996.
Zach: Back then and even today for that matter, what responsibility do you think medical professionals should have had to bear some of the responsibility about addiction and that this really truly was something that could have caused long-term addictive qualities?
Richard: You would think they would realize the opioids are addictive. We were told that when I was in fifth grade. You would think professionals would be aware of that or very cautious about prescribing opioids, but the drug companies were very persuasive and they tended to target doctors who were not familiar with or didn’t use opioids in their practice very much so they believed what the sales representatives told them.
Perhaps they should have been a little more diligent and then of course they were a big part of the problem or pill mills and doctors they were just overprescribing consciously. That was a big part of the problem, too. I know a number of them went to jail. Federal government convicted them of criminal misconduct.
Zach: Richard, a lot’s happened in the 25, 30 years since that where it’s now, I don’t know if it was [Inaudible][13:52] who prohibited this, but basically you as a provider, as a medical provider, physician [Inaudible][13:57] cannot take gifts and things like that from pharmaceutical companies. Did a large part of that push happen due to Purdue Pharma as an example?
Richard: I think yes, definitely. All of the companies did that and again, not just with opioids but with any kind of prescription drugs. One of the most recent example was Subsys I believe was the name of the company and they made an opioid product. They completely bribed doctors. It was a huge scandal and they eventually went to prison; well, are about to go to prison. Put it that way, they were convicted up in New York.
There’s a lot of that that goes on. I think the drug companies are more subtle about it now and it isn’t just outright sort of…there are a variety of stuff that they do. They’re sometimes more sophisticated. They “pay” in quotation marks, doctors put on CME, Continuing Medical Education and they don’t actually do. They give a five-minute speech and get $10,000.
They create testing, post-approval testing of things that they pay the doctors per patient to submit to it and of course they’ll never actually do anything with the test but it’s a way of again, encouraging the doctors to prescribe their products.
Zach: Sure. I want to come back to these settlements. I’m curious to know. How do they come to, the courts, how do they come to the correct dollar amount in these large settlements?
Richard: I don’t know if correct would be the right way to describe it. It’s a marketing process and it’s I guess the outer limit is what the defendants are willing to pay or what they can pay. If we say hypothetically the opioid problem is $100 billion a year which I think is probably on the low side, the drug companies only have $20 billion. That’s all they can pay.
There’s a lot of back and forth that goes on; whether or not there will be a settlement remains to be seen because as I say there are so many players. If you go back to the tobacco settlement which is sort of the model for all of these other settlement negotiations, there are only I think six tobacco companies and 50 states. The numbers weren’t that bad. They were able to get together and work out something.
Here you not only have 2,500 of local governments and 50 state governments but they’re about 25,000 other ones who have not sued yet but could. That makes it extremely difficult to settle. What they have done is create a class action or a class, a settlement class and assuming that that is valid then every local government would be, unless they opt out would be bound by the settlement if one is negotiated.
It’s a little more complicated than that but that’s basically designed to get the defendants to actually agree to something because why would they want to agree to a multibillion-dollar settlement if 90 percent of the potential plaintiffs are not even in the case. As far as getting the right amount, that’s as I say I think it’s more a matter of negotiation. They obviously don’t have autonomous and others are providing some evidence of what it should be. Who know what it is?
Now I will say, this is not a settlement situation but it’s somewhat similar, the Oklahoma case I spoke of, the state came up with an abatement plan and they priced everything out. The court just said, “Yes, that sounds good to us.” The amount was almost a billion dollars. For a relatively small state, that’s a lot of money.
If the remedy is abatement and you know what it will cost at least for one year to essentially create treatment programs and other programs of that sort then you can at least get a handle on what the upper limit ought to be, but in a negotiation where you don’t have the amount calculated by the court then there’s going to be some give and take.
As I say, it boils down to what the drug companies can pay. What Purdue did was declare a bankruptcy and say, “Here’s all our money. You figure out how to distribute it.” They were truly desperate I think just to get out from under it.
Zach: Going back to this because I’m not a lawyer is there a certain amount of money that bumps it up to a circuit court, a state court, a federal court? Does that have any play into this at all?
Richard: As to the size of an award?
Richard: The only limit is it has to be based on some kind of evidence and that’s the plaintiff’s responsibility to provide cost estimate. Now ultimately the jury decides whatever they think, assuming it’s a jury trial the jury decides how much the award should be. That will probably be less than what the plaintiffs were asking but not necessarily.
One of the risks I think of taking a case to trial is if the jury gets really mad at you and I think the drug companies would be a little concerned about that they may go wild and come up with a huge award or they may award punitive damages on top of the compensatory damages. There are some limits to that, constitutional limits, but still it could be a great deal of money.
Zach: All this money that we’re talking about where does it go from the opioid settlement cases? Does it typically make its way back into the communities and families that were affected or does it stay more in government institutions?
Richard: It mostly will stay in government institutions and the interesting question is what government institution will that be. In the case of Oklahoma for example Purdue and a couple of other companies reached a settlement with the state and it was earmarked mainly to go to universities, Oklahoma State in particular, but within days the state legislature passed a statute saying, “You can’t do that anymore. You ask the governor of the state treasury.”
There is some tension between whether the money should be restricted to abatement programs and treatment programs or whether it’s just free money to go to the state treasury. That’s what happened with the tobacco money. The money was not earmarked in any particular way and the states just…they hardly spent anything on helping smokers. They spend it in all sorts of things which is a cookie jar, but it would not go at least directly in my view to individuals.
Now of course they would benefit from any treatment programs that the money was used to develop, but there’s no assurance that that would happen. State legislatures get to be pretty greedy when they see this huge amount of money rolling around. You can’t completely trust them to spend it the way it was intended to be spent.
Zach: That just seems kind of crazy to me. This big problem that was created and now you’ve got families, generations for that matter now that are addicted as a result of the unethical practices of some of these companies. Is there anything that as a person living in that state, Oklahoma as an example, could do to sway politicians for that matter to use some of this money for the better purposes of helping people get help?
Richard: I think that at least what seems to have happened in Oklahoma although it remains to be seen whether the legislature will eventually commandeer all the money and spend it on something else, but it was one of the things that this attorney general did which was clever on his part was to characterize this as not a damage claim but an abatement process. There’s a technical difference between a damage claim and the equitable remedy of abatement.
It’s a little easier when it’s specifically tied to abatement, but they had a plan in place or at least they developed a plan during the course of the litigation. It’s a little easier to tie it to the abatement process.
The same sort of thing happened in California with lead paint. They had an ongoing abatement program to try to clean up the lead paint problem. When the case was brought, the court just earmarked it for payment into this fund. It had already been created so the politicians didn’t get their hands on that money, but if it’s not tied down real very strictly then anything goes.
Zach: You brought up tobacco…
Richard: One example…I’m sorry. Yes. I was about to say there’s a little more sensitivity to this now than there was during the tobacco settlement period because there were really some scandalous examples. I think one of the worst was they spent the money on the NASCAR stadium facility instead of helping out smokers.
Zach: Oh no.
Richard: Yes. That did boomerang a little bit, but that’s what will happen if people aren’t careful.
Zach: If we look more forward into the future with some of these cases that are currently being tried, how did these cases have any effect on shaping the future of these types of lawsuits? How did the cases that have already been settled shape future lawsuits?
Richard: I think that they provide some kind of a template both as to what to do and what not to do. I’m not sure how all of this is going to turn out, but if for example the class action approach of bringing in all of the people or entities who have not sued I think that that might provide a model for having a settlement that involves a large of number of potential plaintiffs and it’s sort of forcing them into the litigation early instead of allowing them to sort of hang around and wait to see what happens.
Another thing about that has resulted in some scrutiny is the way this litigation was financed. Most of it and this goes back to the tobacco litigation and subsequent litigation involving other products is that plaintiffs’ lawyers essentially pay for the court costs and the cost of litigation and then take a share of the recovery and it’s usually a pretty big share because they’re taking a huge risk.
These cases are just incredibly expensive to try because they’re so complex. I think that one thing that perhaps we might see out of all of this is that contingency fee arrangements would be either not allowed at all or limited in some ways so you don’t have this situation where the lawyers take on these cases and the government plaintiffs have nothing to lose because if they win they win. If they lose they don’t lose. The lawyers lose.
This is not a very good way to finance a litigation of this sort where it’s public interest litigation, not just two private parties suing.
Zach: Yes. I understand that you’ve published several books. I’m wondering if there are listeners here on the program to understand what we’re talking about a little bit better. If it’s one of your books or if it’s not is there some place that you would point them towards to have a better grasp on how this all kind of plays out?
Richard: I guess I should tell you that the books I’ve published were on water law and was published almost 50 years ago. It’s not going to do your readers much good. Of course I have written a couple of articles and then there are a number of books, not so much the legal aspect but on the opioid addiction problem in general; Tree Melandes, one of them and Hope Streak is another one and they’re nicely written.
There’s one that just came out about the experience in West Virginia, The Tug Valley Experience. Those are pretty good references. My stuff is pretty legalistic so I don’t know if your readers they might regret picking it up.
Zach: Dreamland is an especially good book.
Richard: Yes, it sure is. Yes. They’re very well-researched and again, my perspective is more from the legal end of it not that I’m not sympathetic to the victims, but lawyers tend to look at things in terms of ‘this claim is no good because of this fact and the other’. My articles have been mostly along those lines. I have severe reservations about public nuisance as a theory for example, but it’s touted by plaintiffs’ lawyers and it was at least successful in the Oklahoma case then probably it will be successful with some of the other ones as well.
My center of interest is more of the structural. Is this the best way to deal with a problem of this nature?
Zach: Got it. I think that there’s a lot more to come.
Richard: Yes. As an example of some of the things that concern me is in the case of tobacco settlement for example of the states became essentially shareholders in the tobacco industry because the money is paid out over a long period of time. If they don’t sell cigarettes the states don’t get paid. The Purdue bankruptcy proposal which I assume the court will approve of is somewhat the same way.
In other words, Purdue they’re not going to stop making opioids. They’re just going to give the profits to the plaintiffs, the creditors, but that doesn’t particularly…obviously there’ll be some controls over what they do but what happens is the government involved has a stake in the continued existence and the success of the industry they’re trying to regulate.
Zach: A company like Purdue you mentioned that they declared bankruptcy. Does that mean that they’re not making pharmaceuticals now or they are?
Richard: No. They are. It’s a Chapter 11 bankruptcy. Essentially what you do is you being the debtor and the creditors are the plaintiffs in the case. You say, “Here’s all the money we have or all of the corporate stock that we have. That’s all you get and we start all over again.”
However and this is the result of the asbestos, some of those bankruptcies what you sometimes get is a sort of long-term arrangement so that the company remains in business and devotes a certain percentage of its profits to a trust fund which is used to pay the claimants off over a long period of time.
Richard: How long are we talking about, Richard?
Zach: I’m sorry. What?
Richard: How long are we talking about during these long-term?
Richard: I think the tobacco one was 25 years. I think the Purdue is indefinitely and the irony of the Purdue case is they’re making opioids and they’re also making the medicine to give opioid addicts to…
Richard: Yes. They’re playing both sides of the street or walking both sides of the street. Those things could last depending on how they’re structured. They could last indefinitely. The asbestos companies are still paying into those funds and it’s been 40 years.
Zach: Wow. Okay. This has been a plethora of information. I think it’s very, very thought-provoking and also I hope will motivate some of our listeners to become more involved in what goes on at these different cases that are being tried to have a voice and to certainly write or call some of these state legislatures to let them know their opinions on things.
Richard: I think that’s right. The state attorneys general are also good targets because they are not only in charge of these cases and they’re elected officials so they do pay attention to input from voters.
Zach: Yes. I remember Andy Beshear stepping on stage at the US last year before he became governor to talk about…he was at what we call a Fed Up rally and he was really all about this. It was about being fed up with the pharmaceuticals industry.
Richard: They have a lot to answer for and maybe this will generate some better regulation and better oversight because they’ll keep on doing it. The dirty tricks aren’t limited to opioids. That just happens to be the one that has come to bite them, but they get sued all the time and pay very large judgements without batting an eye, multibillion-dollar judgments to the federal government in particular for violating various statutes and it’s just the cost of doing business to them.
This could be a little different. This could be a wipe-out situation for them although that of course raises another question and that is do you really want them put out of business. Who’s going to make the pharmaceutical products? It’s not like the tobacco situation where if they’d gone out of business nobody would have cared except smokers I suppose, but this is a little different. The social value of drugs or pharmaceutical products is just pretty high. You want to hold them accountable but you don’t necessarily want to put them out of business.
Zach: Quite frankly, a large part of this money that we’re talking about that gets settled upon I would want to know why a large sum of this isn’t put towards education for people who simply do write prescriptions and then also to the consumers of these particular drugs what exactly happens because I think that not being informed as a consumer of these products is quite frankly led to a lot of where we are now.
Richard: I think that’s right. One of the things that’s happened over the last say 20 years or so is that drug companies advertise directly to consumers sometimes in subtle backhanded ways but instead of advertising or simply promoting their products simply to physicians they do an end-run with physicians and try to generate demand on the part of patients. The doctors are between a rock and a hard place…
Richard: …whatever it is it’s hard for them to say no.
Zach: You get accused of being unethical if you don’t prescribe it.
Richard: Yes, exactly. That was one of the sort of arguments that the opioid manufacturers made. They said, “You’re not treating pain. People are in terrible straits because of chronic pain and you have an obligation to do something about it. Here’s the product that will work.” That argument was pretty persuasive.
Zach: Yes. Richard, it’s been a pleasure having you on the show today. I really appreciate your time.
Richard: Thank you, Zach. I enjoyed talking to you and I hope your listeners got something out of it.
Zach: I think that they did.
Zach: I’m Zach Crouch and you’re listening to Landmark Recovery Radio, your source for addiction and recovery news and knowledge. You can find us online wherever you get your podcasts and please subscribe to get the most up-to-date information from leading experts.
We have guest Joan Arlinghaus joining us on the show today. Joan is an advocate and one of the principals behind Casey’s Law in Kentucky. She will be walking us through how Casey’s Law can be filed, how probable cause for treatment is determined as well as some of the many additional pitfalls filers can face during this process.
Joan, this is certainly a topic that I get questions a lot about from family members so it’s great timing on your part to come on the show. Thanks for joining.
Joan: Sure. Nice to be here.
Zach: We’ve talked about Casey’s Law on the podcast before. Can you give our listeners a bit of a high-level overview of the law and what it actually does?
Joan: Casey’s Law is a hopeful option and we say that because it’s not something we ever tell families they need to do. We present this as an option for them to intervene on their loved ones. It’s usually something they’re looking for after they’ve tried everything in their power to help the person. They either tried to help them, coerce them, encourage them or possibly their loved one has tried treatment multiple times and just had failed possibly because they just didn’t stay long enough for the treatment to work.
Casey’s Law provides an option for the families to intervene and have treatment involuntarily or order to involuntary treatment. It requires a form, a court process. You file a form called 700A. That’s the petition. It gets filed with the courthouse then it’s required to have two evaluations for families to try to make sure their loved ones get to. They will be ordered to attend these two evaluations. One is through a qualified mental health professional and one of them must be a medical doctor.
Once those two evaluations are completed then the respondent and the petitioner appear in court at a predetermined court date. At that time the judge will review the evaluations and all evidence that has been presented and make a determination that they feel the person should be ordered to treatment.
Zach: Got it.
Joan: That’s for the basic process. It varies a little bit in every county but that’s the overall process.
Zach: Thank you for that. You brought up an interesting concept especially with the piece around prior to filing cases, you’re right, many families will exhaust all efforts to get this person into treatment and I mentioned this on the program before but it’s so true. Coercion works.
What I mean by that is that it doesn’t matter how a person gets into treatment. In fact, often the best thing for someone to have happen to them is for them to be coerced, so to speak into treatment because the statistics and the overall effectiveness of treatment isn’t dictated on someone saying, “Hey, I’m going to go to treatment today.”
It really is once a person gets there and they take advantage of the opportunities that are there that the tools that are provided to them while they’re in the experience or episode of treatment it’s really that determines their success. I think that needs to be said because the reality is, Joan and you and I probably both are aware of this acutely that there’s really about a five-hour window of when someone is at their sort of crisis point. At that point, after five hours the denial, the delusion of a person’s thinking who is actively using substances begins to set in again.
If it’s Casey’s Law, if it’s coercion, if it’s a family member saying, “You know what? We’re just fed up. We’re tired. We need you to do something.” I think that needs to be said and really it needs to be just expressed to our listeners and to anybody.
Joan: That’s right. Sometimes we expect people in active addiction to make rational decisions when because it is a brain disease they aren’t capable of doing that. Sometimes it appears that they’re capable because they do make that decision and say, “I need help.” They will think about it and sometimes they even go, but they don’t stay or they’ve missed that window of opportunity because there was nothing available to them at that moment and they were unable to go or like we said, they go and they don’t stay.
Casey’s Law just provides an option for trying to make them stay long enough until they realize it is working for them and they need help. Sometimes people just don’t even realize they have a problem. That’s just how the disease affects them. They don’t even know they need help.
We’ve had people who are in treatment under Casey’s Law and say thank you because they just didn’t even realize that they needed that help. They stick until they’re in the treatment program for sometimes a few weeks, sometimes it takes six to eight weeks before they really understand that this is a good place for them.
Zach: Has there been any efforts, Joan on tracking data of those who have gone into treatment through Casey’s Law efforts and their call it success rates if they’ve completed the programs, those kinds of things, etc.?
Joan: We do not and I’m not even sure how much that is out there for any treatment program on what they deem a success. I believe some of the facilities track if they completed the program but we don’t know what happens after they leave and I don’t think a lot of treatment facilities know either or track anyone that’s been in their program.
We have not been able to do that under Casey’s Law. Mostly it would require treatment facilities to be willing to track it. Casey’s always a private matter so there is a lot of confidentiality so there’s not someone who can just ask who all the Casey’s Law recipients are in every county and try to follow up with them on that.
The ARC it does now track how many petitions are filed and how many are granted and how many treatment orders have been granted, but that’s the only data we have. We do know it works. We meet plenty of people who have been to treatment facility to say, “Thank you. I’m here under Casey’s Law.” We know it’s being used and we get plenty of people who we know it has worked for. We just don’t have statistical data.
Zach: I’m glad that you’re bringing that up because I think as an industry, as a sector of the mental health industry, addictions treatment we’re certainly behind in terms of hard data to track that because it is difficult. It is hard to keep in contact with people that have left the program. They move. They change numbers. It’s hard to find out how they’re doing. They show back up, etc. I think that we’re getting better at that. I hope that just continues to improve to your points that you’ve made.
I’m curious to know, Joan as well about other states that are using similar laws. Have they also found success? I know that Florida has I believe it’s called the Marchman Act.
Joan: Correct. We’re really not familiar with other states that have anything similar to Casey’s Law. We do know I think there’s maybe 35 plus states that have some kind of an involuntary treatment act in place, but most of that is for mental health inquest similar to R2 or 2A for mental health that Casey’s kind of modeled after and based on that same statute. Other states do not have something as comprehensive as Casey’s Law. That is there specifically for addiction to drug and alcohol and other substances that’s being used.
I believe it was West Virginia or Virginia was going to try to pass one this spring session and I have not heard whether that actually happened or not. We’re not aware of any other state that has something as good as Casey’s Law.
Zach: I would hope that a state like West Virginia is able to pass that with the opiate problems that they have.
Joan: Right. I think they had a lot of support going into the session. I hadn’t heard whether that actually was passed or not. Charlotte Wethington, Casey’s mother who was the initiator of Casey’s Law passed a contact list through the years by people from multiple states asking how they can get such a law in their state.
It requires having a legislator who’s willing to back the bill, who’s willing to present that and try to get that passed. They’ve just not had a lot of luck with that. It takes some persistence and perseverance, people fighting for that and it hasn’t happened.
Zach: I’m curious to hear from you. Is there a lot of change that citizens of the state that they’re in to maybe call their legislators to just sort of prompt them in passing such laws? Do you think that that has an effect?
Joan: Yes, that could be very helpful. Of course the bigger the group that can fight court and provide evidence of why it will be helpful and that it works the more success they might have. caseyslaw.org, our website does have a spot-on place on there where people from other states can try to contact one another. If they’re willing to put their name and contact information so if someone else from that state is looking for others in their own state to work with that information can be found on caseyslaw.org.
Zach: Appreciate that. Joan, going back to what you mentioned at the beginning I have a question along those lines. The first step of filing is scheduling an evaluator appointment. Does the person who schedules the appointment have to be a relative? Does the evaluator need to actually be a doctor like an MD?
Joan: Whoever files the petition and it does not have to be a relative. It’s usually a relative. It’s usually a family member is who we see the most, but it can be a friend and it can be anyone. They do not have to be related. They will file the petition. Their actually filing the petition form 700A is the first step. It’s a good idea to schedule your two evaluations at the same time, but we always encourage people to check with their county because each county handles the process a little bit differently.
Some require you to have those evaluations before you can even file the form 700A, the petition. Some will let you do it after you filed the petition. The reason for that is once the petition is filed if a judge, some counties require a separate court hearing to determine probable cause, to review the petition and then some do not. Some just have a judge review it and then makes the determination at that point.
Once probable cause is determined and they’re moving forward with it the respondent is served a summons stating that this petition has been filed and they are required to attend two evaluations. It helps for when they serve that summons if they can give them the date, the time and place of where those two evaluations are scheduled and then also the next court date where all this information will be reviewed.
That’s why it’s kind of done at the same time. It helps the county determine when to set the court date and then also they can put all of the information in the summons.
Zach: It makes sense. You have a probable cause. Over the time that you’ve seen these cases go through recently and further back maybe when the law started, what are some of the common problems that you see when determining probable cause? Can you give any examples of cases where that’s been an issue?
Joan: Probable cause is determined when the petition is initially filed and the judge will determine if there’s probable cause for proceeding forward with the whole process. What we have seen is maybe the form 700A is not filled out completely. They may have not checked appropriate boxes, not provided their correct information. That can halt the process just from the beginning or if they have not provided enough evidence. Providing the evidence is usually the key factor.
Question number three will ask why you believe the person will benefit from treatment, why you believe they have a problem and would benefit. They do not provide very much room on that petition. We tell people just write “see attached” and then attach a separate paper explaining all the reasons that they feel they need to be ordered to treatment involuntarily.
We start with loss of job, children, their home, previous attempted treatment that they just didn’t stay and complete or they’ve had felony charges even misdemeanors, that they’ve had involvement in the criminal justice system, their medical history that was related to their substance use, overdoses, the drugs that they’ve been using, any problems that have been created due to alcohol and drug use.
The more information they can provide the better. If they have dates, timelines they can attach copies of any of their evidence if they have it, they are presenting. They just need to make sure they fill the form completely, answer all the questions, and provide enough evidence.
Zach: I’m curious to hear from you. Just let me know but is it going to be obtuse, so to speak to the courts if you put in that little reason why it’s going to save their life? Is that too insensitive to the judges, to the court system in general to just say that because that’s really what we’re talking about isn’t it?
Joan: Question number four will ask if they are a danger to themselves or others or how they are a danger to themselves or others. That’s where you can fill in every time they use they’re a danger to themselves. It’s a good place to reiterate if they have overdosed or what drugs they’re using and how it is endangering their life. With the drugs we have now many people it’s not that they’re just not functioning in their life but they’re dying.
Zach: That’s right.
Joan: That’s why they’re filing the petition. We want them to one, save their lives and two, give them a life they can live.
Zach: That’s right. When they’re unable to actually locate the individual, a lot of these folks they’re just on the run. They’ve been using. They’ve hopped around in different people’s houses. What happens then when the sheriff or the peace officers are unable to locate the person?
Joan: If they cannot locate them to serve the petition then they really can’t move forward. It will be dismissed. We do encourage families, if they have no idea where they are to wait to file until they can locate them or they find out where they are. They can get everything ready to file and then as soon as they know where they might be or where they can be located then file the petition.
The sheriff or the peace officer, someone does have to be able to serve the summons in order for this to happen. There’s not much we can do when we don’t know where they are.
Zach: Yes. Following up on that, is it a matter of really the sheriff or the peace officer just if you ask them to come at a certain time which to say on a Tuesday at 4:00 because we know they’re going to be there, do they have a much flexibility in their schedule to actually show up or is it just sort of like they show up when they’re ready to?
Joan: What we have found is every county is a little different in how they handle it and also the amount of involvement they’re willing to commit to this process. Some counties the sheriff’s department is very helpful in working with families trying to locate them. They’ll set it up, whatever works to try to get this done.
Zach: Good. Does the whole process, Joan start over if no determination is made to order treatment for the respondent?
Joan: You mean if they file the petition and it’s dismissed?
Zach: Yes. If it’s dismissed as an example if they can’t locate the person as we just talked about.
Joan: Yes then you will just start over again and file again if they are not able to find them. Sometimes depending again on the county, depends on what that court clerk is willing to do or their office is able to do. Some will hold it for a few weeks, but most will not hold it indefinitely until they find them. If it’s dismissed because they were not able to serve the summons or if probable cause was not found the process can start over. You just have to correct whatever the problem was before you try again.
Zach: Got it. As you well know there are a lot of people who relapse and this is a disease where that’s fairly common especially among certain kinds of substances that are being used. Can a person file on a respondent as many times as they like or need to?
Joan: Yes, they can. It has happened. We have people in recovery because they had cases all filed on them twice, three times. As we know sometimes first attempts don’t always work. Sometimes second attempts don’t work, but as long as they’re alive and there’s always hope and we keep trying. Yes, they can continue to file on them multiple times.
Zach: Follow-up question to that, is there a time period that has to elapse between each subsequent filing of the Casey’s Law?
Joan: No except if the person’s previous case must be over. As long as that’s been dismissed and it’s finished and that can vary. On a petition, you can request up to sixty days of treatment or up to 360 days. Once that period has passed or once the judge has dismissed that then you start over again.
Zach: Talk a little bit about that, too. What does 360 days of treatment really mean? What does that include?
Joan: It can be a combination usually of in-patient, outpatient, maybe possibly recovery housing with connection to some kind of support system. It used to be a year of in-patient treatment. That doesn’t really exist in too many places anymore and also it’s not always necessary. We don’t want people to get scared away with that. We don’t want the respondent who needs treatment to be afraid that they’re going to have to go somewhere for a whole year in-patient.
Sometimes that works for people but we also know that a combination of in-patient, outpatient, these other multiple avenues and any of that can work. That’s up to the evaluators. When the assessments are done by the two evaluations, they are the ones that make the determination or recommendation for what they think would be helpful for that person. Based on those recommendations is what the judge bases his decision on.
Zach: This is challenging work — the field that I’m in, that you are intimately involved in. I’ve got a personal connection because I’m actually in recovery myself for quite a while. What got you involved in this? What makes you so passionate around this particular law?
Joan: I started the journey with my daughter’s addiction back at the very beginning of 2006. As we know there’s not much information available then for families who were trying to help, mostly parents trying to help. We went on for many years with limited information and not very good information. After going through the whole journey with her and finally meeting up with some people in 2013 and 2014 where people started talking about it in Northern Kentucky, I was finally able to get some help from others and I learned a lot.
When my daughter was in recovery I just felt I had experienced so much and learned so much that I felt I should give back to other families to try to help them so they did not have to experience what I did and hopefully get better help sooner and know what to do.
Zach: I appreciate the service that you’ve given and continue to give to the community because there are a lot of families that would be lost if it weren’t for this law. I appreciate that. I’m sure that a lot of our listeners, too as well.
Joan: We can thank Charlotte Wethington. She lost her son Casey and she wanted to keep Casey’s memory alive and again try to help other families not go through what she did. We’re grateful that she had the foresight to do that many years ago and it has been helpful and it’s always nice for Charlotte when she’s visiting treatment facilities and meet other people. Casey was her only son, her only child. When she meets others they’re all Casey to her. It’s nice to see people better. Thanks to the law.
Zach: Joan, I just want to say thank you for coming on the show today. I really appreciate this.
Joan: You’re welcome, always passionate to talk about this law and find ways to help families intervene.
Zach: This has been really helpful.
Listen. If you know someone struggling with an addiction and are searching for answers, visit us at landmarkrecovery.com to learn more about substance abuse programs that are both saving lives and empowering families.
Until next week, I’m Zach Crouch with Landmark Recovery Radio.
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