Bluegrass Beacon: Objection! Beshear MIA in open-records dispute

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Editor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

Kentucky’s lawsuit against the manufacturer of OxyContin, heroin’s chemical cousin, stretches back more than a decade and involves three attorneys general. It began in 2007 during Greg Stumbo’s stint as the commonwealth’s top lawyer, who, when he wasn’t busy indicting members of former Gov. Ernie Fletcher’s administration, was crowing about how “a billion dollars wouldn’t touch” what he could wring from Purdue Pharma. Stumbo’s lawsuit charged the company lied to doctors about the addictiveness of the prescription painkiller, causing them to overprescribe it with devastating results, particularly among the poor in Eastern Kentucky. After Purdue insulted the commonwealth with a $500,000 offer as part of a national settlement, Stumbo rightly decided that Kentucky should opt out and pursue its own case against the giant company, which, according to Forbes, has made $35 billion off the drug.

But he failed to deliver.  A decade and a paltry $24 million settlement later – the amount agreed to by Jack Conway, Stumbo’s successor – the case continues in the courts over what, if any, information related to that agreement should be publicly disclosed. Purdue is imploring the courts to honor an agreement made with Conway’s office to seal presumably damaging information about how it marketed its drug to doctors, patients and the public. But First Amendment legal guru Jon Fleischaker, who’s representing STAT, an affiliate of the Boston Globe, rightly urged the Kentucky Court of Appeals to uphold Pike County Circuit Judge Steven Combs’ ruling unsealing the documents.

Combs, whose Eastern Kentucky court sits in a district where 51 people out of every 100,000 died from a drug overdose in 2014 and where a jury likely would render a judgement astronomically higher than the amount Purdue – which tried to get the case moved out of Pike County – agreed to pay, said the public has a right to “see the facts for themselves.” Fleischaker agreed, arguing: “the public’s right to access cannot be controlled by two lawyers agreeing to keep certain records private.” He also noted that trial courts possess “great discretion, as long as it’s not abused.” Nothing prevents the court from releasing only information relevant to the public’s interest and right to know about this case while keeping documents revealing, say, sensitive proprietary information about Purdue under wraps. While Purdue acted in a despicable manner, it’s a privately-owned company and courts operate on precedent. If a private firm’s proprietary information – valuable only to competitors – is released in this case, it could have a chilling effect on companies’ eagerness to cooperate and make it tougher to litigate such cases in the future. However, granting Pharma’s all-or-nothing demand would be an affront to Kentucky’sopen records laws.

Fleischaker vigorously asserted that citizens have a right to know how this settlement was reached: “How did the court behave? How did the attorney general behave? Was it settled for too little or too much? You’re dealing with public offices and public trust in the system.” No doubt, Conway was all too happy to stick a feather in his settlement cap at the expense of a big, bad drug company. Plus, there has been no "I object!" from his successor Andy Beshear, who, prior to becoming attorney general, worked at the law firm representing Purdue Pharma. Beshear’s father, former Gov. Steve Beshear, now works at that same firm. Andy Beshear’s office issued a statement claiming, “the terms of the settlement and court orders preclude the attorney general’s office from taking any position on the appeal.” I object, your honors! It’s understandable that the favorite position of Beshear – like most mediocre politicians – is to take no position. However, nothing in the settlement prevents him from now advocating for the disclosure of public records, especially when the issues are so critical and implications so widespread.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.