Judge Dan Polster of the Northern District of Ohio, who is presiding over the multidistrict litigation (MDL) against opioid manufacturers and distributors (In Re: National Prescription Opiate Litigation, MDL No. 2804), has set a discovery schedule and ordered a series of bellwether trials starting in 2019 to test disputed legal theories and facts before live juries. The first bellwether trial, with the city of Cleveland, and Summit and Cuyahoga counties as plaintiffs, is set for March 18, 2019. Judge Polster also ordered the parties and special masters to meet by August 17, 2018 to schedule additional case tracks for lawsuits by other cities and counties, as well as hospital districts and health plans and Indian tribes.
Judge Polster also ordered ordered the Drug Enforcement Administration (DEA) to turn over detailed information about the quantities of pills defendant companies produced and shipped, including transactional business data and suspicious order reports for defendant activity in Alabama, Florida, Illinois, Michigan, Ohio and West Virginia between January 1, 2006, and December 31, 2014, citing the DEA’s “failures” to control the opioid epidemic. The information from the DEA’s Automated Records and Consolidated Orders System (ARCOS) will help plaintiffs identify additional companies to sue, and help them understand how the drugs were distributed. Releasing the information to the plaintiff lawyers will represent a “step toward defeating the disease,” Judge Polster wrote.
Judge Polster did note in his trial order that the parties have “made good progress” in settlement discussions, and “[t]he parties have indicated, however, they believe settlement will be made more likely if, in addition to the `settlement track,’” the court “also creates a `litigation track.’”
In response to control the opioid crisis, the National Prescription Opiate Litigation, MDL- No. 2804, was formally approved by the United States Judicial Panel on Multidistrict Litigation, JPML, on December 5, 2017. Judge Polster was appointed to oversee the litigation against opioid manufacturers and distributors in the Northern District of Ohio. The defendant manufacturers and distributors named in this mass tort are Endo Pharmaceuticals, Janssen Pharmaceuticals, Teva Pharmaceuticals’ Cephalon, Allergan and their related entities, Purdue Pharma, and many more. Plaintiffs include numerous cities, counties, and states. Allegations include that the pharmaceutical industry deceptively marketed highly addictive prescription painkillers, thereby contributing to a growing epidemic that claims thousands of American lives each year; the manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed either directly or through key opinion leaders these drugs to physicians; and the distributors failed to monitor, detect, investigate, refuse, and report suspicious orders of prescription opiates.
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.
Hoping to pass legislation this spring to address the opioid epidemic, the House Energy and Commerce Committee oversight panel called a hearing for May 8th, calling on current and former executives of pharmaceutical distributors to testify who are accused of contributing to the serious opioid crisis in this country and what role they and their companies play in the epidemic of prescription painkillers. The three largest pharmaceutical distributors in the United States — Cardinal Health, AmerisourceBergen and McKesson Corp. — are all scheduled to testify at next month’s hearing. Together these three companies are reported to account for approximately 85% of all prescription drugs in the U.S., with revenues of more than $192 billion. The U.S. Senate Health Committee also is looking into the opioid epidemic, and the Senate Finance Committee is holding a hearing today on how to improve Medicare and Medicaid responses to the opioid epidemic.
These hearings come after Attorney General Jeff Sessions recently announced the creation of the Department of Justice Prescription Interdiction & Litigation (PIL) Task Force, to fight the prescription opioid crisis. The PIL Task Force will aggressively deploy and coordinate all available criminal and civil law enforcement tools to control opioid overdoses in the United States, with a particular focus on manufacturers and distributors.
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