Opioid Epidemic Biggest News Story in 2017, Opioid Litigation May be Biggest Legal News in 2018

Cleveland, OHAcross the U.S., city and county newspapers looking back on 2017 say the top news story was the opioid crisis. And opioid litigation already looks like it will dominate legal news in 2018.

Early in December, the U.S. Judicial Panel on Multidistrict Litigation (MDL) ordered city and county cases to join more than five dozen similar civil actions pending in federal courts nationwide, including Alabama, Illinois, Kentucky, West Virginia, California and Ohio. The New York Times on December 22 reported that at least 189 of the federal cases have been assigned to Judge Dan Polster of the U.S. District Court for northern Ohio, based in Cleveland.

The Judicial Panel believes the benefits in efficiency in this MDL will outweigh other concerns. The transfer order says that, “All of the actions can be expected to implicate common fact questions as to the allegedly improper marketing and widespread diversion of prescription opiates into states, counties and cities across the nation, and discovery likely will be voluminous...Although individualized factual issues may arise in each action, such issues do not — especially at this early stage of litigation — negate the inefficiencies to be gained by centralization.”

Opposing the MDL

Some cities and counties aren’t pleased with this order. For instance, attorneys representing the city of Everett argue that its case should remain in the state of Washington. According to Herald Net, “Everett argued that its case raises unique claims, that it should remain in Washington, and barring that option, the other lawsuits should have been sent here,” and a U.S. District Court Judge spent much of 2017 addressing the legal issues raised by the city’s allegations. (Last year Everett filed a lawsuit against Purdue Pharma, claiming the company contributed to the community’s opioid epidemic by allowing its product to wind up in drug rings and pill mills” -- where unscrupulous doctors handed out opioid prescriptions for minor ailments, disregarding the drugs’ addictive properties. In September, city attorneys prevailed when Purdue Pharma attempted to have the case dismissed without trial.)

The Everett attorneys said that combining cases now “would essentially place Everett’s action on hold” while the other litigants spar over unrelated pre-trial matters, and “unfairly delay Everett the badly-needed relief sought in its lawsuit”.

Favoring the MDL

“Legal experts said the lawsuits against the drug makers and distributors are anything but simple, the New York Times (Dec. 22, 2017) reported. There are so many variables involved that complicate so many issues, such as involvement by medical doctors, big pharma and street drug dealers and even the FDA because it regulates prescription drugs.

Some attorneys believe that by centralizing these cases, litigation can move more quickly and that “its disparate strands might be worked out in one place.”

Opioid Litigation Likened to Tobacco Industry Litigation

The Opioid situation has been likened to the state litigation in the 1990s against the tobacco industry, which ended with a global settlement, and involved some of the same lawyers that are spearheading the Opioids MDL.

''This litigation is like a big hammer -- it's like a tool where you're hitting somebody upside the head to get their attention,'' Mississippi attorney general Mike Moore told the Times. He filed the first state case against the tobacco industry. ''We have a public health emergency. It's time to quit talking about it and, if people are serious about fixing it, let's sit down and resolve it.''

More than 20 plaintiffs’ lawyers filed a motion to lead the federal Opioids MDL, and they have already been coined the “Dream Team”, and the “best and brightest” of the mass torts bar. (Judge Polster had ordered plaintiffs’ lawyers to file motions for lead counsel by December 20.) According to the motion--and reported by The National Law Journal--, the team would be led by New York attorney Paul Hanly of Simmons Hanly Conroy, Joe Rice of Motley Rice and Paul Farrell of West Virginia’s Greene, Ketchum, Farrell, Bailey & Tweel, who is lead counsel in more than 100 of the 180 cases in the MDL before U.S. District Judge Dan Polster of the Northern District of Ohio.

“All of the lawyers on the proposed slate are very experienced in either complex litigation or drug litigation or MDL proceedings,” Hanly said in a press release. Rice led the negotiations over the $246 billion tobacco settlement, as well as deals worth billions of dollars involving the BP oil spill in 2010 and the Volkswagen diesel emissions settlement. Farrell is founding co-chairman of the American Association for Justice’s opioids section litigation group along with Baron & Budd’s Burton LeBlanc, who is one of 15 lawyers on a proposed executive committee submitted in the motion.

The above lawyers asked Judge Polster to extend until January 9 a deadline to submit a proposed plaintiffs steering committee. Hanly said he anticipated there could be some changes to the team but didn’t expect any additional motions for lead counsel to be filed. “The reason there was not a single ‘nay’ vote is the slate we put together is the best and the brightest.”