Opioid Lawsuits Are Headed to Trial. Here’s Why the Stakes Are Getting Uglier. - The New York Times
▻https://www.nytimes.com/2019/01/30/health/opioid-lawsuits-settlement-trial.html
Uncontested: The devastation from prescription opioids has been deadly and inordinately expensive.
Contested: Who should foot the bill?
Just over a year ago, opioid lawsuits against makers and distributors of the painkillers were proliferating so rapidly that a judicial panel bundled all the federal cases under the stewardship of a single judge. On a January morning, Judge Dan Aaron Polster of the Northern District of Ohio made his opening remarks to lawyers for nearly 200 municipal governments gathered in his Cleveland courtroom. He wanted the national opioid crisis resolved with a meaningful settlement within a year, proclaiming, “We don’t need briefs and we don’t need trials.”
That year is up.
Far from being settled, the litigation has ballooned to 1,548 federal court cases, brought on behalf of cities and counties, 77 tribes, hospitals, union benefit funds, infants with neonatal abstinence syndrome and others — in total, millions of people. With a potential payday amounting to tens of billions of dollars, it has become one of the most complicated and gargantuan legal battles in American history.
With settlement talks sputtering, the judge has signed off on a parallel track involving, yes, briefs, focused on, yes, trial. He will preside over three consolidated Ohio lawsuits in what is known as a “bellwether,” or test case. The array of defendants include Purdue Pharma, Mallinckrodt PLC, CVS RX Services Inc. and Cardinal Health, Inc. That jury’s verdict could determine whether the parties will then negotiate in earnest or keep fighting.
The plaintiffs have long said that the companies deliberately looked the other way at the improbable quantities. But the lawyers did not have the hard numbers in hand to bolster their claims.
Now they do.
For the time being, the judge will not release the data to the public. But a passage from a congressional report gives a sense of the granular information in the data: during 10 months in 2007, one distributor, McKesson, shipped three million prescription opioids to a single pharmacy in a West Virginia town with 400 residents.
Typically, patients who sue for medical malpractice or product liability must turn over their own medical records as proof. They forfeit conventional privacy rights.
Here, the overwhelming majority of plaintiffs are government entities, not individuals. They are seeking to be reimbursed for the accumulated costs of drug addiction and its collateral damage. The defendants want them to produce precise evidence showing how those costs are calculated, including the chain of events — for example, from a drug’s development, to its delivery, to a pharmacy-filled prescription to, eventually, bills from hospitals and others.
What on Earth Is Going On?
That means the drug industry is asking for patients’ records and for every prescription the plaintiffs deemed medically “suspicious.” The plaintiffs are pushing back, saying that the depleted municipal budgets for health, social services and law enforcement paint a more telling picture.
Why drug companies could have an upper hand
Lawyers on both sides agree: This litigation presents a slew of novel legal issues.
If the bellwether ends in a victory for plaintiffs, appeals courts, increasingly filled with conservative judges, would be unlikely to uphold all of Judge Polster’s rulings on these untested legal questions, much less a whopping, emotional jury award. Complexity favors the defense.
And in settlement negotiations, the long game is the defense’s best friend: they can afford to drag this out. Typically, the longer it slogs on, the more the final tab gets driven down.