MDLs to Watch: National Prescription Opioid Litigation

In the wake of an inarguable opioid epidemic throughout the United States, manufacturers of prescription pain medications may need to pay out sooner than expected. Last month, the United States Judicial Panel on Multidistrict Litigation ruled to centralize the pretrial proceedings of 64 class actions pending against a number of pharmaceutical companies. As is the goal in multidistrict litigation, the centralization process, captioned In Re: National Prescription Opiate Litigation, will likely speed up discovery and efficiently streamline the parties toward a settlement or trial.

The lawsuits, filed by city and local governments, allege the defendant manufacturers and distributers created a public health crisis by mishandling the dissemination and promotion of these drugs, which causes the deaths of 150 Americans daily and the development of opioid addiction in millions of others. The plaintiffs assert that the defendants both overstated the benefits and downplayed the risks of opioid use while engaging in deceptive and aggressive marketing tactics to physicians and, in turn, patients. Further, the defendants are alleged to have failed to monitor, detect, investigate, refuse and report suspicious orders of opioids. The “Big Three” distributor defendants and their subsidiaries – AmerisourceBergen Corp., McKesson Corp., Cardinal Health 110, LLC, Cardinal Health, Inc., Cardinal Health 105, Inc, Cardinal Health 108, LLC, Cardinal Health 112, LLC, Cardinal Health 414, LLC, and The Harvard Drug Group, LLC – are the named defendants in a majority of the cases and are allegedly responsible for the distribution of 80% of the medications at issue. There are 50 named defendants.

Although the Panel noted that any number of proposed districts would be suitable due to the nationwide scope of the litigation, ultimately, the Panel ordered the transfer of the actions to the Northern District of Ohio. The Panel held that this district was significantly connected to the subject matter of the litigation, as the region has experienced a large increase in opioid-related overdoses and has expended considerable resources as a result of the opioid epidemic. One of the “Big Three” defendants, Cardinal Health, is based in Ohio. Further, the Panel found that the district was “a geographically central and accessible forum that is relatively close to defendants’ various headquarters in New York, Connecticut, New Jersey and Pennsylvania.” Since plaintiffs’ filing of the motion to centralize, the parties have notified the Panel of 115 potential tag-along actions. As the number of new lawsuits against opioid manufacturers increase, the scope of the multidistrict litigation will likewise expand, both geographically and substantively.

The Panel assigned the case to the Honorable Dan A. Polster for coordinated or consolidated pretrial proceedings. Judge Polster has presided over several opioid-related cases, largely due to the state’s own opioid epidemic. New Hanover County, a plaintiff in one of the lawsuits against opioid manufacturers and distributors, has suffered a 1,500 percent increase in opioid-related deaths since 1999. In 2016 alone, the county lost 4,050 of its residents due to overdoses. During this week’s first hearing on the matter, Judge Polster expressed concern and dedication to the epidemic:

What’s happening in our country with the opioid crisis is present and ongoing. I did a little math. Since we’re losing more than 50,000 of our citizens every year, about 150 Americans are going to die today, just today, while we’re meeting. And in my humble opinion, everyone shares some of the responsibility, and no one has done enough to abate it. That includes the manufacturers, the distributors, the pharmacies, the doctors, the federal government and state government, local governments, hospitals, third-party payors, and individuals. Just about everyone we’ve got on both sides of the equation in this case. The federal court is probably the least likely branch of government to try and tackle this, but candidly, the other branches of government, federal and state, have punted. So it’s here. So my objective is to do something meaningful to abate this crisis and to do it in 2018.

An attorney for Purdue Pharma acknowledged there are “issues in this country” and indicated that the defendants “want to be a part of the solution” and work with the Court. Stating that he encourages a settlement that does more than “just moves money around,” Judge Polster’s words imply that the defendants will not only need to pay out a substantial sum, but will also need to overhaul their current business model as a remedial measure. Judge Polster sequestered groups of plaintiff attorneys and defense lawyers in courtrooms in order to facilitate settlement discussions. In November, Purdue confirmed that they are in settlement negotiations with a group of state attorneys general and are trying to reach a global resolution. However, Judge Polster has expressed that he is prepared to try the cases filed by the state of Ohio in 2019.

This is by far a novel matter for opioid manufacturers. Pharmaceutical companies have experienced a litigious past in recent years and if the present multidistrict litigation is any indicator, Big Pharma could be facing a fate similar to Big Tobacco’s notorious barrage of lawsuits years ago that resulted in a $246 billion settlement. Purdue Pharma was sued in 2003 for failing to warn patients about the addictive properties of its medications. The company subsequently settled with 5,000 patients for a landmark $75 million.

How Can The Experts Weigh In?

Similar to what is seen throughout medical malpractice claims stemming from opioid prescriptions, the litigation surrounding opioid manufacturers will undoubtedly require medical experts to establish the effects opioids have on the human body and the benefits and risks of the medication. Pharmacists, pain management doctors, and addiction specialists are all potential experts that have been on the frontline and have ample experience with and knowledge on opioid usage. Chemists and toxicologists can also be helpful in understanding the chemical structure of the drug and how its addictive properties can cause death. A large part of the plaintiffs’ claims is that the defendants failed to adequately warn of the dangers of the drug and engaged in deceptive marketing practices. Experts in the field of pharmaceutical marketing will be of particular assistance, considering that as a part of any potential settlement, the defendants will likely have to renovate its current practices. Likewise, failure to warn experts, ideally in the sub-specialty of medical warnings, can help establish the appropriate disclosures necessary for opioid medications, whether the defendants met such standards, and, if deemed a part of the settlement, how the defendants can properly warn patients in the future.

Overall, the current class actions against opioid manufacturers and distributors represent a turning point in the opioid epidemic plaguing the United States. And if Judge Polster’s words are any indicator, it appears the parties may reach a resolution that has far-reaching consequences for the entire country.