Opiate Crisis Faces Two Tracks, Settlement and Litigation

By Ginsey Varghese

The potentially vast opioid litigation has received a big push for an alternative dispute resolution intervention.

In December, the U.S. Judicial Panel on Multidistrict Litigation (MDL) consolidated and transferred more than 400 opiate-related cases to Ohio’s Northern U.S. District Court under the oversight of Judge Dan Aaron Polster.

And Polster immediately said he will push for a solution to get a handle on the cases filed against manufacturers by cities and counties and bring on special masters to handle the negotiations. Jan Hoffman, Can This Judge Solve the Opioid Crisis? N.Y. Times (Mar. 5) (available at http://nyti.ms/2Fhx7sK).

The plaintiffs in the MDL are cities, counties and states, though some states participating in the MDL settlement discussions have filed separate suits.

The consolidated case under Judge Polster is called In re Nat’l Prescription Opiate Litigation. In re Nat’l Prescription Opiate Lit., No. MDL 2804, 2017 WL 6031547,*1 (J.P.M.L. Dec. 5, 2017)(available at https://bit.ly/2G3EELQ). The court’s case page is available at https://bit.ly/2qDbbmg.

Opioid makers and distributers, including individual doctors, are accused of creating a public-health crisis with their mishandling of the potent drugs, estimated to kill 180 people in the U.S. daily from misuse. Opioids are painkillers, and they range from prescription drugs to illegal heroin.

Judge Polster said in the first hearing on Jan. 9 that he will drive the case toward settlement. He explained the importance of meaningful resolution. He said, “I don’t think anyone in the country is interested in a whole lot of finger pointing . . . depositions, and discovery, and trials.  . . . [W]ith all these smart people here and their clients, I’m confident we can do something to . . . make sure that the pills manufactured and distributed go to the right people and no one else, and that there can be an effective system to monitor delivery and distribution.  . . .” Transcript of Proceedings (Doc 58) at 411-12, In re Nat’l Prescription Opiate Litig., No. MDL 2804 (N.D. Ohio Jan. 9, 2018)(available at https://bit.ly/2DPT1BA).

The parties suggested three names to serve as Special Masters–David Cohen, a Cleveland-based special master with experience in mass torts and antitrust (see www.specialmaster.law); Cathy Yanni, a JAMS Inc. neutral in San Francisco who has worked as a special master on pharmaceutical cases (see www.jamsadr.com/yanni/), and Duke University Prof. Francis McGovern, of Durham, N.C., who also has worked as a special master in pharmaceutical cases (see https://law.duke.edu/fac/mcgovern/). Id. at 414.

Polster had said that there been substantial progress made in settlement discussions since January, but several barriers “to a global resolution” identified prompted the establishment of “limited litigation track, including discovery, motion practice, and bellwether trials.” Minutes of 3/6/2018 Conference and Order, In re Nat’l Prescription Opiate Litig., No. MDL 2804 (N.D. Ohio Mar. 7, 2018) (available at https://bit.ly/2HZmdZy); see also, Amanda Bronstad, Opioid Judge Allows Some Discovery, Motions to Go Forward in MDL, Nat’l L. J. (Mar. 7, 2018)(available at https://bit.ly/2HYeriy).

This was followed by an April 11 discovery order by Polster (available at https://bit.ly/2KiSSen). The National Law Journal termed the case management order—the first in the MDL–“aggressive,” noting it targets the litigation track to a first-quarter 2019 trial date. Amanda Bronstead, Polster Sets Aggressive Discovery Schedule, Slating Opioid Trial for March 2019, Nat’l L. J. (Apr. 12)(available at https://bit.ly/2FhYdPy).

Polster identified some of the cases that would proceed on the litigation track in the order. The Bloomberg article above notes that allowing local governments and opioid makers’ attorneys to prepare for trial may be the quickest way to overcome some of the barriers to settlement, which include causation issues.

A settlement conference is scheduled for May 10, announced earlier this year and confirmed in an order by Polster earlier this week (available at https://bit.ly/2HTzc2g).

If no deal can be reached, Polster noted in the first hearing that he is prepared to try Ohio’s claims against opioid makers in 2019. Transcript of Proceedings (Doc 58) at 412-13, above.

* * *

More details will appear in an expanded article later this spring in Alternatives to the High Cost of Litigation.

The author was a CPR Institute 2018 intern. She is a law student at Pepperdine University’s School of Law in Malibu, Calif.  

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