Your Guide To The Massive (And Massively Complex) Opioid Litigation

By Colin Dwyer


October 15, 2019


With the cost of the opioid crisis being estimated at tens of billions of dollars and with more than 200,000 overdose deaths since the late 1990s, the stakes are immense. What happens with it will largely determine how much money cities, counties, hospitals and healthcare systems nationwide will have to fight the devastating effects of opioid abuse. But the litigation is also intensely complicated and highly nuanced. The novel approach taken is not the usual class action lawsuit. "This (litigation) is totally uncharted territory. There's no model for any of it." says Alexandra Lahav, a University of Connecticut law professor. 


As you can imagine, it's ridiculously complicated to have a slew of different opioid-related lawsuits all playing out in different U.S. courts.So a judicial panel decided to streamline things by putting the more than 2,000 pending lawsuits under the watchful eye of a single federal judge who will be responsible for guiding pretrial motions and keeping everyone on the same page. The consolidated lawsuit is called the National Prescription Opiate Litigation. And the panel chose the Northern District of Ohio for several reasons: It's geographically convenient for the defendants, the state has been hard hit by opioid overdoses and Judge Dan Polster, who will oversee the process, has experience overseeing consolidated cases. Once all the pretrial wrangling ends, the various cases will then be sent back to their original courts, which are responsible for conducting those trials — at least in theory. That's because with multidistrict litigation, things very rarely get that far. The vast majority of these big cases reach settlements before they go to trial, and that's kind of by design: Getting everyone in the same room, so to speak, has a way of getting everyone on the same page.

And the judge has made clear that he would like the parties to settle rather than go to trial.


The defendants include some of the health care industry's biggest names. The others named in the consolidated federal case are pharmacies to huge conglomerates such as CVS, Walmart and Albertsons. The full list is way too long to reproduce; you can find it here instead.


Broadly speaking, all these companies have been accused of fueling the nation's opioid crisis to line their own pockets — drugmakers by aggressively marketing their opioid treatments while downplaying addiction and overdose risks, and distributors by failing to detect, probe or report suspicious orders.


Up until recently, the plaintiff list included more than 2,500 cities, counties, tribal authorities and individuals from across the U.S.  Judge Polster then extended the plaintiffs to include hospitals, unions and self-insured corporations. Numbers exploded when the Judge, who has repeatedly encouraged "global settlement" deals with Big Pharma, approved a plan to create something called a "negotiation class."  When inked the deal is binding and would essentially resolve any other lawsuits against the company in the consolidated federal case. It would protect the company from future lawsuits by cities and counties at the federal level.


The novel approach benefits both sides. Plaintiffs generally like the arrangement because it increases their bargaining power and leverage. Defendants like it because they fear agreeing to pay billions of dollars in a settlement with an ever growing list of plaintiffs.




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