Federal judge in opioid case fast tracking distribution changes

Judge in county opioid lawsuits wants changes to pill availability first, compensation talks later

Hundreds of county and city lawsuits aimed at collecting damages from opioid painkiller manufacturers and distributors have landed in the Cleveland, Ohio courtroom of U.S. District Judge Daniel Polster.  In December 2017, the U.S. Judicial Panel on Multidistrict Litigation consolidated more than 200 cases scattered in courts across the country and sent them to  the U.S. District Court, Northern District of Ohio, Eastern Division and Judge Polster.

Polster, who was appointed by President Bill Clinton in 1998, intends to change the way pills are prescribed and distributed before addressing the financial considerations of the cases.

 “My objective is to do something meaningful to abate this crisis and to do it in 2018,” he said during a Jan. 9 hearing. “What I'm interested in doing is not just moving money around, because this is an ongoing crisis. What we’ve got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly. Because we all know that a whole lot of them have gone walking and with devastating results.”

Counties, cities and states have filed lawsuits in state and federal court against the producers and distributors of opioid-based painkillers, claiming that deceptive marketing practices and false claims about the drugs’ addictive nature have fueled an epidemic that has pushed many patients to heroin as a low-cost substitute. For counties, that has meant an explosion in costs to social services agencies and their justice systems. And a mounting death toll.

Defendants in what is being called National Prescription Opiate Litigation include Purdue Pharma, Teva Pharmaceutical Industries, Johnson and Johnson, Endo Health Solutions, Allergan, Cardinal Health and McKesson Corporation among others.

Most recently, Polster gathered roughly 300 attorneys in Cleveland (Cuyahoga County, Ohio) Jan. 31 for a settlement conference, leaving them with directions to choose six attorneys for each side’s settlement team by Feb. 6. The co-leads for each side will meet again with Polster March 6. Officials from the Drug Enforcement Agency and the Food and Drug Administration were also on hand Jan. 31 to describe steps their agencies have taken to restrict pill supply.

“He made it perfectly clear ... that he is determined to use his powers to bring about a settlement and not to try and litigate this case, which could take years,” said Steve Acquario, executive director of the New York State Association of Counties. “He was very forceful. He believes it’s in nobody’s best interest to litigate this over a multi-year period. People are dying every minute of every day.”

Several conference attendees reported that Polster is prioritizing possible injunctive action that could affect immediate change to how opioids are distributed or prescribed.

In a Feb. 2 scheduling order, Polster called the Jan. 31 conference “productive” and the discussions “meaningful.” State governments have filed separate suits, and Polster has requested the voluntary formation of a committee of attorneys general, who are not subject to the court’s jurisdiction.

Although several states have also sued, counties are taking action after damages from the 1998 Tobacco Master Settlement Agreement failed to reach the local level. The tobacco settlement will pay at least $206 billion until 2023 to 46 states, with payments continuing in perpetuity.

Joseph Rice, one of the co-leads for the counties, said there was a major difference between the tobacco suit and opioids.

“Tobacco products took years to kill users,” he said. “Now, someone could overdose and die very quickly if they took too many pills.”

Albany County Executive Dan McCoy liked the pace the settlement talks were taking, but worried that the rush to settle would leave details liable to be forgotten along the way.

“There’s less of a rush for the money than there is changing protocols and getting some meaningful change in place,” he said. “I hope we don’t miss crossing some “t’s and dotting some “i”s because we hurried too much. We want to make sure people are held accountable.”

Acquario said New York counties’ suits in New York State Supreme Court could shine a light on how settlement talks would proceed. The state suit is in the discovery phase, and the information produced could have a “massive impact nationally.”

“Nobody has that data yet, the marketing and the distribution data,” Acquiario said. “Analysis of that can produce trends and provide a roadmap for parallel court action.”

Paul Hanly, along with Rice and Paul Farrell, will serve as co-lead counsels for the plaintiffs, who are represented by nearly 100 other firms. Rice represents McCoy’s Albany County, along with the state of South Carolina, and Farrell represents a number of West Virginia counties and cities. Hanly previously litigated more than 1,400 opioid cases brought by 5,000 individuals against pharmaceutical companies in 2004, when the epidemic was in its infancy.

Whether a county has filed may make a difference as negotiations progress toward a settlement.

 “It absolutely matters,” said Krista Baisch, an attorney for Crueger Dicksonson, which represents 61 Wisconsin counties, 45 Iowa counties and one county each from Indiana, Minnesota and North Carolina.

“To have an advocate for your county in that resolution room, you’ll have to file a lawsuit. That protects a county’s interest.”

Baisch said the defendants could create a settlement class for counties that haven’t sued, limiting how much they would receive, relative to counties that have sued.

Rice, who is representing Albany County, said counties’ ability to sue could depend on how detailed their records are.

“Some counties don’t have computerized records going back 15 years, so that could be a big factor in whether or not they can prove the impact these pills have had,” he said.

As for damages, Rice said it was too early to predict amounts, and Ohio Attorney General Mike DeWine (R) told the Cleveland Plain Dealer that any payout by drug companies would be held up by appeals.

Although the Big Tobacco settlement of the 1990s looms as an obvious comparison, Rice said nuances of the opioid case make it harder for modern litigants to prove.

Tobacco companies’ vertical integration created a direct line from manufacturer to consumer.

“Tobacco companies designed, manufactured, packaged, marketed and sold and delivered the cigarettes. Here you don’t have that,” he said. “Here you have multiple manufacturers, and you have multiple distributors. You have your pharmacies and your generics.

“We’re going to have to show that company number one’s conduct and maybe have to show company number one’s pills were used by injured party number one and match it up. That’s going to be tough to do in some cases.”