With lawyers at an impasse over settling the national opioid litigation, a federal judge in Cleveland has set an aggressive discovery schedule that includes going to trial on March 18 of next year.
In his first case management order, U.S. District Judge Dan Polster of the Northern District of Ohio on Wednesday identified which opioid cases would move forward with discovery under a “litigation track,” with the goal of getting the parties closer to settlement.
Polster, who is overseeing more than 430 lawsuits brought primarily by cities and counties against opioid manufacturers and distributors, set the trial in three cases brought in Ohio, including a lawsuit by the city of Cleveland. He also ordered briefing on motions to dismiss based on “threshold legal issues” in six other cases in the states of Alabama, Ohio, Illinois, Michigan, West Virginia and Florida, including those brought by Florida’s Broward County, the city of Chicago and the Alabama attorney general. Native American tribes and hospitals also would have cases included.
Paul Hanly of Simmons Hanly Conroy, co-lead plaintiffs counsel in the opioid litigation, said the order drew largely upon a discovery plan put forth by the plaintiffs attorneys—including which cases to litigate.
“The ligation is national in scope,” he said. “And sooner or later, the various laws of different states are going to apply, so we picked those states because there may be some particular issues of state law he wants addressed and, secondly, those are communities that have extremely been hard hit. Not that there are any communities where this is not a problem, but those are particularly hard hit.”
Polster also expanded his previous order requiring the U.S. Drug Enforcement Agency to turn over to plaintiffs lawyers certain data from a database that tracks opioid sales.
“Discovery of precisely which manufacturers sent which drugs to which distributors, and which distributors sent which drugs to which pharmacies and doctors, is critical not only to all of plaintiffs’ claims, but also to the court’s understanding of the width and depth of this litigation,” he wrote in a Wednesday order.
The orders follow Polster’s decision last month to allow some discovery in the opioid litigation. The judge previously was focused entirely on settling the cases.
The discovery orders, however, don’t indicate that Polster has switched gears on settlement talks. He has scheduled a settlement conference for May 10 and, on Monday, added five more lawyers to the settlement table who represent retail chain pharmacies such as Walmart and Walgreens.
On Tuesday, he also also ordered the defendants to pay up for their 50 percent share of costs associated with paying for three special masters. Hanly said the total monthly bill for the special masters is hundreds of thousands of dollars.
“We the plaintiffs have timely paid our 50 percent, in fact we pay our 50 percent on the very day that we receive the invoices, and apparently the defendants have not,” he said. “We thought that was somewhat amusing.”
Lawyers and spokespeople for the defendants, which include Purdue Pharma, which is headquartered in Cranbury Township, New Jersey, and McKesson, which is based in San Francisco, either did not respond to requests for a comment, or declined to comment.
Rulings on motions to dismiss could influence lawyers and judges in lawsuits in state courts, where most attorneys general have sued opioid defendants. In fact, Polster said attorneys general in other states could file amicus briefs in the Alabama attorney general’s case and appointed one of the settlement masters, Cathy Yanni, to oversee coordination with state court cases.
“Certainly, other states would be paying attention whether they deem it precedential or not,” said Rhon Jones, head of the toxic torts practice at Beasley, Allen, Crow, Methvin, Portis & Miles, who represents Alabama Attorney General Steve Marshall in his opioid case.
He said the expanded order on the drug database, called the Automated Records and Consolidated Orders System, or ARCOS, is “100 percent helpful.”
“It’ll have information about the pills, who distributed them, who they went to, how many,” he said. “In my mind, this is fantastic news because it really goes hand in hand with his order on case management because you’re attempting to clarify what has been done and what hasn’t been done and by whom.”
Department of Justice lawyers initially balked at providing the database, even as U.S. Attorney General Jeff Sessions insisted the federal government would pursue legal action against opioid makers. Polster ordered the DEA to turn over the database, but limited the data to what could be on Excel spreadsheets—generally, identifying the manufacturers and distributors that sold 95 percent of all opioids.
In Wednesday’s order, Polster said the plaintiffs still did not know which manufacturers sold what types of pills to which distributors.
“In any given case, therefore, the plaintiff still cannot know for sure who are the correct defendants, or the scope of their potential liability,” he wrote.
He ordered the DEA to provide by April 20 more data for the six states at issue.
Meanwhile, the U.S. government has asked to be involved in settlement talks.
“After evaluating applicable federal statutes, the federal government’s numerous other opioids efforts and its statutory authority to recover funds when the United States has paid for or provided medical treatments, the United States has determined that it can best assist the court in this litigation as a ‘friend of the court,’” wrote Assistant U.S. Attorney James Bennett, of the U.S. Attorney’s Office in Cleveland, in an April 2 motion. “The United States’ substantial financial stake in combating the opioid epidemic has implications for the proper allocation of any monetary settlement of the claims asserted in the multidistrict litigation.”