Opioid Litigation — Hundreds of Cases Consolidated: Here’s What You Should Know

The impact of the opioid crisis is not just a national or state issue, it also has a tremendous impact at the city and county levels as well. Law enforcement, first responders, hospitals, jails, and other community services have all been stretched thin by the opioid crisis.

In an effort to hold the manufacturers and distributors of opioids accountable for the increased costs to their communities, several cities and counties filed lawsuits directly against the entities profiting from opioids. Eventually, 46 lawsuits were filed, and those plaintiffs moved to have their cases consolidated into a single multidistrict litigation.

Consolidation

In December 2017, the U.S. Judicial Panel on Multidistrict Litigation ordered the consolidation of the then nearly 200 pending opioid-related cases into multidistrict litigation in the US District Court for the Northern District of Ohio under Judge Dan Polster. The lawsuits consolidated into In Re: National Prescription Opiate Litigation (MDL No. 2804), alleging “improper marketing of and inappropriate distribution of various prescription opiate medications” in cities, states, and towns across the U.S.

Multidistrict litigation (MDL) allows centralized oversight of many related cases by a single judge. Although there may be some unique factual or legal issues in each individual case, the idea is that centralization of discovery and pretrial motions creates efficiency and consistency across all the cases.

Although the plaintiffs that initially moved to consolidate their cases into an MDL were all political subdivisions — including cities, counties, and states — other plaintiffs now include individuals, consumers, hospitals, third-party payors, and Native American tribes.

The defendants in this MDL case are opioid manufacturers, distributors, and physicians. The manufacturer-defendants include various corporate entities, including Actavis, Allergan, Cephalon, Endo, Janssen, Johnson & Johnson, Purdue Pharma, Teva, and Watson. Among the distributor-defendants are the “Big Three” pharmaceutical distributors — AmerisouceBergen, McKesson Corp., and Cardinal Health — which together allegedly distributed more than 80% of the drugs at issue.

The physicians are identified as “key opinion leaders” who were paid by manufacturing-defendants to encourage opioid prescribing.

Allegations

According to the order consolidating the cases, the common allegations are that the:

• • • manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed (directly and through key opinion leaders) these drugs to physicians; and/or
    • distributors failed to monitor, detect, investigate, refuse, and report suspicious orders of prescription opiates.

The manufacturer- and distributor-defendants had an obligation under the Controlled Substances Act and similar state laws to prevent diversion of opioids and other controlled substances into illicit markets. The plaintiffs allege that the defendants failed to follow the required standards and that failure resulted in the diversion of drugs into their communities and the subsequent opioid crisis.

Plaintiffs have also brought claims for violation of federal and state Racketeer Influenced and Corrupt Organizations Act (RICO) statutes, consumer protection laws, state controlled-substance acts, and common-law claims such as public nuisance, negligence, negligent misrepresentation, fraud, and unjust enrichment.

Scheduling

In April, Judge Polster issued a case management order establishing the schedule for motion practice, discovery, and trial preparations for certain test cases in the MDL. Under the order, Judge Polster identified four sets of representative-plaintiffs and provided a schedule for amending complaints and motions to dismiss.

The four sets of representative-plaintiffs are:

• • • Local governmental entities in Ohio and Illinois;
    • Local governmental entities in West Virginia, Michigan, and Florida;
    • Sovereign entities, including Alabama and Native American tribes; and
    • Hospitals and third-party payors.

Judge Polster then identified three Ohio cases as Track One for trial:

• • • The County of Summit, Ohio v. Purdue Pharma L.P.;
    • The County of Cuyahoga v. Purdue Pharma L.P.; and
    • City of Cleveland v. AmerisourceBergen Drug Corp.

Discovery in these three cases is ongoing with trial on all surviving claims scheduled to begin on March 18, 2019.

Recently, the attorneys general of 31 states and the District of Columbia filed amicus briefs to oppose two motions to dismiss Alabama’s lawsuit. The attorneys general expressed concern that dismissal of Alabama’s claims could impact pending and planned lawsuits by other states outside the MDL. The attorneys general argue that states have broader authority than cities or counties to take actions to protect the health and well-being of their citizens.

The parties are engaging in settlement negotiations, although they have also identified barriers to a global settlement. A separate settlement team has been established for retail chain pharmacies.

In April, the US Department of Justice (DOJ) announced that it would also participate in the settlement negotiations. In an earlier statement of interest, the DOJ argued that “the taxpayer has paid a heavy price because of dishonest opioid marketing practices, and deserves to be compensated.”

While allegations related to opioids are one high-profile example of the current healthcare crisis, healthcare fraud happens throughout the medical industry, from dentists to criminals targeting the elderly and more vulnerable members of our population.