On December 5th, the Judicial Panel on Multidistrict Litigation (JPML) consolidated 155 opioid suits from 25 courts, and chose District Judge Dan Polster of the Northern District of Ohio in Cleveland to preside over them (In Re: National Prescription Opiate Litigation, MDL No. 2804).
As reported in our recent blog post, Plaintiffs Petition Judicial Panel on Multidistrict Litigation for Consolidated Docket in National Opioid Litigation, Plaintiffs in a majority of opioid lawsuits filed nationwide have petitioned a federal judicial panel to have the cases consolidated before a single federal judge in either Ohio or Illinois. In a motion filed on September 25th with the JPML, the plaintiffs request transfer and coordination of all pending federal lawsuits filed by governmental entities against the distributors and manufacturers of prescription opioid painkillers.
Among the reasons why the JPML selected this forum are (i) the actions implicate common fact questions as to allegedly improper marketing and widespread diversion, (ii) although individual issues might arise, they don’t negate the efficiencies to be gained by centralization at this early stage, centralization in Northern Ohio would serve the convenience of parties and witnesses, (iii) the district presents a geographically central and accessible forum relatively close to headquarters of defendants, and (iv) Judge Polster’s experience in multidistrict litigation over gadolinium contrast dyes, which involved several hundred cases, provided him valuable insight into the management of complex litigation. Three drug distributors with operations in central Ohio are defendants: Cardinal Health, AmerisourceBergen Drug Corp. and McKesson Corp. The three together control 85 percent of the market share for prescription opioids.
From the JPML Order:
After considering the argument of counsel, we find that the actions in this litigation involve common questions of fact, and that centralization in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Plaintiffs in the actions before us are cities, counties and states that allege that: (1) manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed (directly and through key opinion leaders) these drugs to physicians, and/or (2) distributors failed to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates. All actions involve common factual questions about, inter alia, the manufacturing and distributor defendants’ knowledge of and conduct regarding the alleged diversion of these prescription opiates, as well as the manufacturers’ alleged improper marketing of such drugs. Both manufacturers and distributors are under an obligation under the Controlled Substances Act and similar state laws to prevent diversion of opiates and other controlled substances into illicit channels. Plaintiffs assert that defendants have failed to adhere to those standards, which caused the diversion of opiates into their communities. Plaintiffs variously bring claims for violation of RICO statutes, consumer protection laws, state analogues to the Controlled Substances Act, as well as common law claims such as public nuisance, negligence, negligent misrepresentation, fraud and unjust enrichment.
Although all of the cases on the motion before us involve claims brought by political subdivisions, we have been notified of potential tag-along actions brought by individuals, consumers, hospitals and third party payors. As reflected in our questions at oral argument, this litigation might evolve to include additional categories of plaintiffs and defendants, as well as different types of claims. We will address whether to include specific actions or claims through the conditional transfer order process.
Most parties acknowledge that any number of the proposed transferee districts would be suitable for this litigation that is nationwide in scope. We are persuaded that the Northern District of Ohio is the appropriate transferee district for this litigation. Ohio has a strong factual connection to this litigation, given that it has experienced a significant rise in the number of opioid-related overdoses in the past several years and expended significant sums in dealing with the effects of the opioid epidemic. The Northern District of Ohio presents a geographically central and accessible forum that is relatively close to defendants’ various headquarters in New York, Connecticut, New Jersey and Pennsylvania. Indeed, one of the Big Three distributor defendants, Cardinal Health, is based in Ohio. Judge Dan A. Polster is an experienced transferee judge who presides over several opiate cases. Judge Polster’s previous MDL experience, particularly MDL No. 1909 – In re: Gadolinium Contrast Dyes Products Liability Litigation, which involved several hundred cases, has provided him valuable insight into the management of complex, multidistrict litigation. We have no doubt that Judge Polster will steer this litigation on a prudent course.”
Multidistrict Litigation (MDL)
Multidistrict Litigation is the consolidation of many plaintiffs’ cases from federal district courts around the country into one federal district court to streamline discovery and pre-trial proceedings, and to conduct bellwether trials. The JPML, located in Washington, D.C., which is comprised of seven federal district court judges, decides whether to consolidate certain cases with other similar cases. The JPML also decides to which court and judge to transfer the cases.
In an MDL, each plaintiff’s lawsuit remains independent. No plaintiff is required to take a settlement as part of a class. If a plaintiff is unable to settle his or her case through the MDL, they may return to their local federal court for additional proceedings or trial. Alternatively, in a class-action lawsuit, all plaintiffs are part of one single lawsuit and are subject to the group settlement and/or trial strategy of the lawyers representing the entire class. Consolidated plaintiffs have the benefit of group negotiating power during the important pre-trial phase of a lawsuit. Further, MDL courts conduct preliminary bellwether trials to test jury reaction to a case or cases selected as representative of the MDL plaintiff pool. The outcome of an MDL’s bellwether trials may encourage an appropriate group settlement of all cases consolidated under that MDL.
Once the MDL is formed all federal cases nationwide must be transferred and/or filed directly into the MDL. Because our attorneys are licensed in federal courts and the JPML, this allows us to represents clients throughout the United States.