Lawyers seeking to create a $1 billion medical monitoring trust for babies born addicted to opioids lost their bid to create a separate multidistrict litigation proceeding.
The U.S. Judicial Panel on Multidistrict Litigation in an order Thursday refused to transfer class actions brought on behalf of 40 percent of the nation’s opioid-addicted babies, the latest group of plaintiffs suing manufacturers and distributors over a nationwide epidemic tied to the prescription painkillers. The panel concluded that there would be “substantial overlap” with the multidistrict litigation it created a year ago for opioid lawsuits.
“Few efficiencies will be gained by creating a new MDL for NAS plaintiffs,” wrote the panel, referring to neonatal abstinence syndrome that afflicts opioid-addicted babies. “The progress of both MDLs likely would be hindered by the need for two judges to attend to overlapping discovery matters, rule on redundant motion practice and administer both MDLs separately.”
A coalition of eight law firms representing the babies insist they seek different remedies than those sought by the cities and counties that make up the majority of the opioid MDL, which is before U.S. District Judge Dan Polster in the Northern District of Ohio. For one thing, they want a $1 billion trust to pay for medical monitoring of the babies over the next few decades, rather than reimbursement for damages and injunctive relief.
Supporting their request for a separate MDL were various child welfare groups acting as amici, including March of Dimes and the Child Welfare League of America. Those groups filed briefs before the MDL panel, which rarely sees amicus briefs.
“We are reviewing the decision and determining our path forward,” wrote Scott Bickford of New Orleans-based Martzell, Bickford & Centola, who argued before the MDL panel Nov. 29. “One thing is clear: babies born with NAS must have separate representation and a medical monitoring trust to get the justice and relief they specifically need. It is not in anyone’s interest for their claims to be warehoused in Cleveland.”
The dispute reflects the myriad assortment of plaintiffs suing over opioids, which have led to a public health crisis of record deaths and addiction. While cities and counties have dominated the litigation, hospitals, Native American tribes and others have elbowed their cases into the MDL.
On May 31, lawyers for the babies, whose cases were predominantly transferred to the MDL, sought a separate track of discovery. Polster rejected that motion June 28, and they renewed it Aug. 21.
In their petition before the MDL panel, the lawyers claimed that the baby cases are distinct, and that the attorneys on the executive committee leading the MDL have refused to share discovery with them. As a result, they wrote, lawyers had “grave concerns that the due process rights of opioid-dependent infants are not being protected.”
They sought an MDL in West Virginia or Illinois.
Lawyers for the distributor and manufacturing defendants opposed the request, which they called a “blatant attempt at forum-shopping” and “dangerous precedent.”
“The NAS plaintiffs’ arguments are fundamentally about case management concerns, although they dress them up in constitutional garb,” wrote lawyers for the distributors in an Oct. 12 filing.
In its order, the panel agreed, but acknowledged the plaintiffs’ lawyers’ concerns.
“The identity of plaintiffs and their unique damages—which plaintiffs and amici assert include the need for a medical monitoring trust that funds prolonged, multidisciplinary care—do indeed differentiate these cases from those brought by cities, counties and states that compromise the bulk of MDL No. 2804,” the panel wrote. “But these differences among claims and requested relief, in our opinion, do not justify the creation of a new MDL.”