In June 2006, a 53-year-old Guatemalan man named Jorge Obregon broke his hip in a car crash while traveling with two sons in a remote part of the Central American country. The local hospital, unable to perform hip surgery, urged him to seek care in Guatemala City, a six-hour drive away.

Obregon’s sons arranged for a family friend in Guatemala City to come get them and take them to the city. The friend, who owned a small Cessna plane, flew with a co-pilot to the rural area and picked them up. After takeoff, the plane reported engine trouble and crashed, killing all five people on board.

Four years later, a civil trial stemming from the plane crash got under way in a federal courtroom in Miami. The relatives of the victims, including Obregon’s wife, had sued Teledyne, a maker of Cessna engines, for allegedly causing the crash. (The official cause: Engine failure due to an oil leak from improperly torqued mounting nuts.) In addition to a wife, Obregon left behind four other children.

The lawyer charged with defending Teledyne was Amy Furness, a shareholder at Carlton Fields in Miami. She began by acknowledging the family’s loss. “They have suffered greatly, and my heart goes out to them,” she told jurors in her opening statement. “But I need to explain to you why my client is not responsible for their loss.”

Furness, a trained engineer, argued that Teledyne was not to blame because the engine — while originally made by Teledyne — had been overhauled to the point that it no longer was the company’s creation.

The six-day trial ended in a verdict for Teledyne; the jury awarded no damages to the plaintiffs.

For more than two decades, Furness has defended companies against wrongful death and personal injury lawsuits, often taking on complex cases with lots of money and reputations at stake. Her clients have included manufacturers of cigarettes, diet pills, surgical implants and — most recently — prescription opioids. Colleagues say she’s effective because she’s calm, professional and able to get people to focus on facts, law and logic — no matter how tragic the situation.

“She can be very business-like, but in a soft way,” says Carlton Fields’ chair emeritus, Ben Reid, who has worked with Furness since she started at the firm in the mid-1990s. He notes that to win the Teledyne trial, Furness overcame two major challenges: An experienced opposing counsel and Miami’s renowned plaintiff-friendly courts and juries. (The case ended up in Miami because Teledyne does business there.)

“One of her greatest skills is taking a multitude of facts and figuring out how to organize it all,” Reid says.

Law attraction

Furness grew up in Philadelphia. Her father worked as an engineer in the construction industry, and her mother taught ninth-grade English at an inner-city public school. Furness, the older of two children, says she was book smart and good at science.

“I like things that are concrete, which is funny, because law is not,” she says.

As a college student, she majored in engineering at Drexel University in Philadelphia. The engineering school follows a cooperative education model in which students alternate classroom studies with six months of full-time work in a career-related job. At one point, Furness worked for a large builder and designer of power plants and was part of a team involved in the sale of a nuclear facility. The legal aspects of the deal made her want to become a lawyer.

“Someone suggested to me that as a woman, it would be really great if I had a law degree to complement my science” education, she says.

Her first job out of law school was as an attorney in the environmental claims division of Reliance National Insurance near Philadelphia. She examined claims to determine if they were covered under the insurer’s policies and traveled around the country helping clients develop cleanup plans for contaminated sites.

Her future as an in-house lawyer was limited, however. She figured that to rise to a more senior-level position, such as general counsel, she’d have to get trial experience at a law firm.

In the mid-1990s, she joined the Miami office of Popham Haik, now Carlton Fields. She says she also had a personal reason to make the move: Her grandparents, with whom she was close, had retired to South Florida. (A one-time behemoth, Reliance Insurance later went bankrupt after losing more than $2 billion in the early 2000s and the environmental claims division was acquired by XL Capital.)

Her engineering background and insurance defense work made Furness a good fit for product liability litigation.

In May 1996, ValuJet flight 592 caught fire after takeoff from Miami and crashed into the Everglades, killing all 110 people on board. McDonnell Douglas, the manufacturer of the plane that crashed, hired Furness’ firm to represent it in litigation in state and federal courts. Furness remembers visiting the crash site as experts investigated the wreckage.

“The day I went, they brought out a big metal container filled with contents and dumped it out. The first thing that fell out toward me was a little teddy bear,” she says. “That’s when you realize the reality and severity of what you’re doing in your defense work.”

Ultimately, the National Transportation Safety Board (NTSB) determined that mechanics for SabreTech, a contractor that maintained ValuJet’s planes, had improperly stored dozens of oxygen containers in the cargo hold, igniting the fire that led to the crash. The NTSB also blamed ValuJet and the Federal Aviation Administration for lax oversight. The cases against McDonnell Douglas (now Boeing) were dismissed or settled without an admission of wrongdoing.

Furness says she got to see how different lawyers operated and gravitated toward those who had “mastered the facts.”

“If there was a deposition or a hearing, and people were moving along and needed to confirm that something they recalled was or was not correct, there were certain lawyers they would always look to. And I saw the power and confidence in that,” she says.

Balancing act

Over time, Furness developed a niche defending pharmaceutical and medical device companies against product liability claims. Starting in the mid-2000s, she was national coordinating counsel for Indevus Pharmaceuticals in litigation filed by people claiming to have been injured by fen-phen diet pills. She coordinated local counsel in nearly every state across the U.S. and managed the resolution of more than 10,000 cases, she says.

“We didn’t ever take these cases to trial. This was all pretrial workup,” she says. “We’re down to two or three small cases at this point.” Indeed, her cases can take years to settle or resolve. “You’re never certain at what point things will be over,” she says. “As a type A personality, I’d love to complete something and mark it off and move on to the next thing, but it doesn’t work that way.”

Furness, who has an 11-year-old son, bemoans the fact that most of her female lawyer friends who started off with her no longer work at the firm. “They’re either in-house or permanent law clerks and stay-at-home moms. Some are law professors,” she says. “That’s not unique to Carlton Fields. It’s the profession.”

She recalls chaperoning a field trip to Washington, D.C., recently with her son’s fifth-grade class. Forced to give up daytime use of her phone, she stayed up past midnight each night working and going through e-mails.

“It’s hard to be a working mom, especially as a lawyer. You’re at the beck and call of your clients and judge’s calendar,” says University of Miami Law professor Renee Schimkat, who became friends with Furness while working at Carlton Fields for 16 years. “Amy has found the balance.”

Furness notes that she came to motherhood relatively late, after she had gained a reputation as someone who could be counted on. Meanwhile, she has taken a larger role at Carlton Fields and now manages the Miami office with 85 lawyers.

The opioid case

Among her current cases is the defense of Endo Pharmaceuticals, the maker of Percocet, in a lawsuit brought by the state attorney general that seeks to hold drug companies responsible for Florida’s opioid epidemic. Furness is Endo’s regional coordinating counsel in Florida, meaning she manages the company’s litigation docket statewide. In addition to the AG’s lawsuit, Endo faces a number of complaints from hospitals and local governments asserting opioid-related damages.

Across Florida, the incidence of fatal heroin overdoses rose from 101 deaths in 2012 to 707 deaths in 2017, according to the National Institute on Drug Abuse. Deaths involving synthetic opioids, such as fentanyl, rose from 162 in 2012 to 2,162 in 2017. In 2017, another 1,272 died after taking prescription opioids.

The AG’s lawsuit outlines several ways the epidemic has cost the state and local entities money: Police, paramedics and coroners have had to respond to more overdoses; hospitals have seen more babies born addicted to opioids; and more children have gone into foster care because of a parent’s addiction.

The state is suing seven opioid manufacturers, including Endo and OxyContin maker Purdue Pharma, three distributors and the nation’s two largest drugstore chains, CVS and Walgreens. The suit argues that manufacturers used deceptive marketing to persuade doctors and the public that opioids were a safe way to treat common chronic pain and then flooded the state with “unjustifiably high quantities” of pills. Distributors and drugstores contributed to the problem by overselling opioids and not preventing illegal sales, the suit alleges.

In February, Florida Attorney General Ashley Moody appeared in a Pasco County courtroom for the suit’s first hearing. Pasco was chosen because it’s a hotbed for opioid addiction, the suit says. “I wanted to be here today so you know how important it was to our office,” Moody told the judge. “My office will dedicate every necessary resource to make sure that we can get to trial in an expeditious fashion. We’re hoping to get there by May of next year.”

Lars Noah, a law professor at the University of Florida, says Moody’s office likely will try to settle the case out of court. While plaintiff lawyers involved in similar suits nationwide say they expect to collect damages similar to the tobacco settlements, Noah predicts opioid manufacturers will end up paying considerably less than Big Tobacco did in the 1990s.

“Yes, they did some pretty awful things,” he says. “But I don’t think they’re shaking in their boots because of these lawsuits.”

A key difference, he says, is that plaintiffs in the tobacco litigation could point to government spending on smoking-related health care, while the link between the production of opioids and harm to government budgets is less clear. “At some point, we’re talking about unlawful use of lawful products,” he says. “That creates real causation hurdles for state and local entities.”

Furness says it’s too early to discuss her defense strategy for Endo. “The litigation has just begun,” she says.

Ricardo Martinez-Cid, the plaintiffs attorney in the Guatemalan plane crash trial, says Furness is a formidable opponent. “She’s always prepared and knows how to communicate complex issues to a jury,” he says. “As bad as the news has been about opioid companies and their conduct, she’ll make sure they get as fair a day in court as they can.”

Like most litigators, Furness doesn’t always win. One loss involved a lawsuit filed by a lifelong, heavy smoker who had been diagnosed with throat cancer and chronic obstructive pulmonary disease (COPD). The plaintiff, an elderly woman, sued R.J. Reynolds Tobacco in state court in Miami, seeking to hold the company responsible for her illnesses. As part of RJR’s defense team, Furness argued, among other things, that alcohol use could have caused her cancer, and that asthma could have caused her COPD. In 2011, a jury assigned 70% of the fault to the plaintiff and 30% to RJR, which had to pay $1 million in damages.

Furness says it’s unfair to reflexively blame a company any time its products are involved in controversy.

“A lot of claims that we see involve people who may not have understood how to use the product, may have misused the product or may have just unfortunately had a different experience that is unrelated to the product,” she says.

“I do believe the manufacturers I represent really are trying to make a product that’s beneficial and has the value that’s advertised, never intending to harm or injure anyone,” she adds. “A corporation wouldn’t go into business making a product that’s designed to be harmful.”

On a recent afternoon at her office, Furness introduced herself by joking about her attire, a black dress and white jacket accented by a red flower pin. “Black is my color, but I put on a white jacket for you,” she says, laughing. “I didn’t want to terrify you in all black.”

Amy Furness

Title
Co-managing shareholder at Carlton Fields in Miami

Education
Law degree from Widener University Delaware Law School, 1991; bachelor’s in engineering from Drexel University, 1988

Personal
She and her husband, an appellate attorney at Carlton Fields, live in Coral Gables with their 11-year-old son.

Background
In the late-1980s, Furness worked as a research engineer for United Engineers and Constructors in Philadelphia, where she was involved in the sale of a nuclear power plant. After working in-house at an insurance company for several years, she joined the Miami office of Carlton Fields, specializing in product liability litigation.

Perspective
“You have products that are complicated, science that might not be of interest to people. So jurors are focusing on the injury, and they see a big company and wonder how are they going to reconcile this. When I’ve had trials with experts, I’ve had them talk to a jury almost as if we were in a schoollike setting.”

State’s Opioid Lawsuit
Last fall, the Florida Attorney General’s Office sued opioid manufacturers and distributors in state court in Pasco County.

The complaint lists 12 defendants: Seven opioid manufacturers, three distributors — AmerisourceBergen, Cardinal and McKesson — and the nation’s two largest drugstore chains, CVS and Walgreens.

The manufacturer defendants and law firms representing them are:

Allergan: Makes Kadian and Norco and generic opioids. Represented by Hill, Ward & Henderson and Kirkland & Ellis

Cephalon: Makes Actiq and Fentora. Represented by Morgan, Lewis & Bockius

Endo: Makes Percocet, Opana and Percodan. Represented by Carlton Fields

Insys: Makes Subsys. Legal representative not available

Janssen: Makes Duragesic and Tapentadol IR. Represented by Nelson Mullins and O’Melveny & Myers

Mallinckrodt: Makes Exalgo, Roxicodone, Xartemis XR and Methadose. Represented by Phelps Dunbar

Purdue: Makes OxyContin, MS Contin, Butrans, Hysingla ER, Dilaudid, Dilaudid-HP and Targiniq ER. Represented by Dechert LLP and Cole, Scott & Kissane

Stating Its Case
The state is seeking an undisclosed amount of monetary damages from drug manufacturers and distributors for the opioid epidemic. An excerpt from the state’s lawsuit:

“Opioid use has had tragic consequences for communities across Florida, and the state has been forced to expend enormous sums as a result of the opioid crisis. The crisis has a cause: Defendants cooperated to sell and ship ever-increasing quantities of opioids into Florida. To create newfound demand for opioids, defendants used unfair and misleading marketing — including the use of front groups, paid ‘opinion leaders’ and continuing medical education courses (CMEs) — to convince both doctors and patients that opioids could safely be prescribed for common ailments that cause chronic pain. To meet the artificially inflated demand, defendants sold, shipped and dispensed opioids in quantities that could not possibly have been medically justified and in the face of clear evidence that opioids were being diverted for illegitimate uses. Defendants’ plan succeeded, and they recorded multibillion-dollar profits as a result.”

Opioid Overview

• 16.3: Number of opioid deaths per 100,000 people in Florida in 2017
• 14.6: Number of opioid deaths per 100,000 people in the U.S. in 2017
• 60.9: Number of opioid prescriptions written for every 100 people in Florida in 2017
• 2,320: Number of babies born with neonatal opioid withdrawal syndrome (NOWS) to Medicaid recipients in Florida in 2016
• 54%: Increase in the number of NOWS cases in Florida from 2012 to 2016

A Wave of Opioid Lawsuits

Nationwide, more than 1,500 local governments and other entities such as hospitals have sued drugmakers and distributors seeking to recoup the costs of fighting opioid addiction.

Most lawsuits have been bundled together into a multi-district litigation (MDL) in Ohio. The MDL, which includes a number of complaints filed by Florida cities and counties, is to be heard in the fall in federal court in Cleveland.

Meanwhile, some states, such as Florida, New York and Massachusetts, have pursued their own cases.

In March, Oklahoma reached a $270-million settlement with Purdue Pharma, the maker of OxyContin. Purdue agreed to pay $103 million to establish an addiction treatment and research center at Oklahoma State University in Tulsa, provide $20 million in medicine to the center and reimburse cities and counties for $72 million in litigation costs. Purdue’s owners, the Sackler family, also pledged $75 million to the center.

 

Read more in Florida Trend's July issue.

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