A federal judge overseeing more than 1,500 opioid lawsuits has refused to allow the defendant companies to bring a motion for sanctions against plaintiffs lawyers who they claim made “misleading, inflammatory, and improper” statements on a “60 Minutes” episode last month.
The Dec. 16 episode, “Opioid Crisis: The lawsuits that could bankrupt manufacturers and distributors,” prominently featured former Mississippi Attorney General Mike Moore, former Ohio Attorney General Mike DeWine and Burton LeBlanc of Baron & Budd in Baton Rouge, Louisiana. In the show, Moore remarked that the lawsuits could cost opioid companies $100 billion in damages.
After the episode aired, lawyers for several of the defendant companies filed court papers on Jan. 4 asking to bring a motion for sanctions against the three lawyers, insisting they “are engaged in a concerted campaign to taint potential jury pools in this district—and across the country—through misleading, inflammatory, and improper public statements.” Plaintiffs’ lawyers leading the multidistrict litigation called the motion “blatantly self-serving and improper.”
In a Jan. 10 minute order, U.S. District Judge Dan Polster of the Northern District of Ohio rejected the request to file the sanctions motion.
“The court refused to allow the defendants to move forward with those motions,” Moore confirmed in an email. “There was no necessity for anyone else to respond as the matter is concluded.”
DeWine and LeBlanc declined to comment.
But the judge also admonished lead plaintiffs’ attorneys in the multidistrict litigation about their conduct, according to Cleveland.com, describing the statements made on “60 Minutes” as going “right up to the edge of where anyone should go.”
“I don’t want to see anything more like I saw on ‘60 Minutes,’ and I don’t want to see anything on the defense side either,” Polster told lawyers at a teleconference.
The move comes as both sides of the opioid cases are escalating attacks against one another ahead of a Sept. 3 trial in the Northern District of Ohio. The trial comes in a set of cases brought by the cities of Cleveland and Akron and two Ohio counties.
On Jan. 10, Polster allowed Mark Pifko, a shareholder at Baron & Budd, which represents the city of Cleveland, to file a motion to disqualify defense attorney Carole Rendon, a partner at Baker Hostetler. The disqualification motion is sealed, but, in the request filed in court, Pifko said the move was necessary “so there are no inadvertent disclosures of confidential information,” such as a federal drug database provided during discovery.
Polster has ordered lawyers to file responses to the disqualification motion by Jan. 23. Rendon, who represents Endo Health Solutions, is the former U.S. attorney for the Northern District of Ohio. She did not respond to a request for comment.
Rendon was one of the defense lawyers who filed the request for the sanctions motion, which cited the Ohio Rules of Professional Conduct. That proposed motion sought a gag order that would prevent plaintiffs lawyers from talking to the media or public regarding “the character, credibility, or reputation of a party” or the “strengths or weaknesses of any party’s case.” The proposed motion also wanted the gag order to include statements about information “likely to be inadmissible evidence” and the confidential federal drug database.
“Their behavior, which reached a crescendo on national TV during a recent episode of ‘60 Minutes,’ is a flagrant violation of their ethical obligations as attorneys practicing before this court and threatens defendants’ rights to a fair adjudication of the claims asserted against them,” the proposed motion said of the three plaintiffs’ lawyers. “These lawyers’ professional misconduct is so far outside the bounds of appropriate behavior as to warrant a gag order and other sanctions.”
The proposed motion also demanded the three lawyers pay attorneys’ fees and costs and be referred to the court’s Committee on Complaints and Policy Compliance “for investigation and the prosecution of a formal disciplinary proceeding.” It characterizes the “60 Minutes” episode as the latest in a series of “improper and inflammatory extrajudicial statements” that plaintiffs lawyers have made about the defendants.
In addition to Rendon, lawyers for Allergan, AmerisourceBergen Drug Corp., McKesson Corp., Cardinal Health Inc., Purdue Pharma, Johnson & Johnson, Mallinckrodt and Discount Drug Mart joined the proposed motion.
On its website, McKesson called the “60 Minutes” episode a “one-sided story, which uncritically repeated the plaintiffs’ lawyers’ charges without any challenge.” It noted that “60 Minutes” did not reach out to the company for the story.
Moore represents Ohio’s attorney general, who is now Dave Yost, as well as other cities, counties and states suing opioid companies.
The lead plaintiffs attorneys who responded to the motion were Joe Rice of Motley Rice; Paul Hanly of Simmons Hanly Conroy; and Paul Farrell of Greene, Ketchum, Farrell, Bailey & Tweel.
“The proposed motion is nothing but a distraction from the tasks at hand,” they wrote in the response. The statements of the three lawyers on “60 Minutes,” they wrote, were “entirely true, were on a topic of great public importance, and were not protected by court order.”
“Certainly this court will need to take steps, at trial, to ensure that juror decisions are based only on the evidence presented in court, but attempting to silence discussion of these issues in the public forum is neither proper nor warranted,” they wrote. “Nothing in the ‘60 Minutes’ broadcast threatened the integrity of these proceedings, nor undermined the transparency of the public debate.”