A federal judge in Ohio granted the U.S. Department of Justice’s request to halt discovery in a set of leading lawsuits over the opioid epidemic due to the partial government shutdown, but allowed discovery to go forward in two more bellwether cases.
In a Dec. 26 motion, Assistant U.S. Attorney Lynne Buck, in Cleveland, sought to stay discovery for 14 days in cases alleging that defendant companies were responsible for an epidemic of addictions and overdoses across the country tied to the prescription painkillers. U.S. District Dan Polster granted the motion the following day, but on Monday added two more bellwether cases to a small subset of lawsuits in which he has allowed limited discovery.
“This second set of bellwether cases recognizes the need to press forward with the litigation in another jurisdiction hard-hit by the marketing and distribution of opioids,” wrote lead plaintiffs attorneys Paul Farrell of Greene, Ketchum, Farrell, Bailey & Tweel; Paul Hanly of Simmons Hanly Conroy; and Joe Rice of Motley Rice, in a prepared statement.
The DOJ’s discovery motion is one of several requests in litigation throughout the country to suspend work on civil cases, with some judges granting the motions. Some districts, like the Southern District of New York and the Northern District of Ohio, have issued their own written orders.
In the opioid case, the DOJ cited a Dec. 26 order by Northern District of Ohio Chief Judge Patricia Gaughan holding all civil matters involving the United States in abeyance for 14 days due to the “lapse of congressional appropriations funding the federal government.”
“If at the end of that period, Congress has not restored appropriations to the Department,” the motion says, “the United States may seek a further extension of discovery deadlines pertaining to the third party federal agencies.”
More than 1,500 cities, counties and other government groups have sued the opioid companies, but the DOJ’s involvement has primarily been in discovery matters, such as providing information to plaintiffs’ lawyers about a drug distribution database held by the Drug Enforcement Administration.
Polster has assigned a handful of bellwether cases for discovery, with a trial set for Sept. 3. On Dec. 19, he adopted most of a federal magistrate judge’s report and recommendation not to dismiss racketeering, public nuisance and other claims brought by the cities of Akron and Cleveland, and two Ohio counties, against opioid manufacturers and distributors, and pharmacies.
On Dec. 31, concluding that the initial three cases “include a large, but incomplete, fraction of the issues and parties relevant to the MDL,” he ordered a “second track” of bellwether cases to go forward involving the city of Huntington and Cabell County, both in West Virginia.
Last month, the U.S. House Energy and Commerce Committee released a report that found the DEA and opioid distributors failed to stop the flow of millions of pills into rural West Virginia.