Opioid Bellwether Trials May Be Needed to Overcome Barriers to Global Settlement: Court

Hopes for a quick settlement of opioid lawsuits brought by communities and states nationwide appear to be diminishing, as the U.S. District Judge pushing for an early resolution indicated last week that it appears likely that there will need to be some bellwether trials before an agreement will be reached. 

There are currently more than 200 complaints filed in the federal court system, each seeking damages for costs associated with opioid addiction and abuse from various drug manufacturers, including Purdue, Teva/Cephalon, Janssen, Endo, Actavis, and Mallinckrodt, as well as distributors for the medication, including McKesson Corporation, AmerisourceBergen Corporation, and Cardinal Health, Inc.

In December, the U.S. Judicial Panel on Multidistrict Litigation consolidated all of the opioid cases before U.S. District Judge Dan A. Polster in the Northern District of Ohio, for coordinated discovery and pretrial proceedings as part of an MDL, or multidistrict litigation.

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The cases are centralized to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings from different courts and to serve the convenience of the parties, witnesses and the judicial system.

Shortly after he was appointed to preside over the litigation, Judge Polster pushed the parties to engage in early settlement negotiations, informing the attorneys for plaintiffs and defendants that he wants any resolution to significantly reduce the number of opioid pills currently available, and place safeguards to make sure the addictive medications are used properly.

According to minutes from a conference and a court order (PDF) issued last week, Judge Polster indicates that while there had been progress, some roadblocks are preventing the parties from reaching a global opioid drug settlement, resulting in the need for some cases to likely go to trial.

“The parties reported important and substantial progress on several fronts, but also identified various barriers to a global resolution,” Polster wrote. “To varying degrees, the parties agreed that the quickest way to surmount at least some of these barriers is to put into place a limited litigation track, including discovery, motion practice, and bellwether trials.”

The order calls for the parties to submit suggestions for how those bellwether trials should take place, and lay out a proposed case management order by March 16. That order would explain how cases should be identified, how discovery should take place, and other matters relevant to getting bellwether trials underway.

Following that proposed case management order, Polster indicates that the court would confer with the special masters and promptly enter an order. In the meantime, Polster also called on active settlement negotiations to continue.

Opioid Abuse Crisis

In the United States, evidence now suggests that drug overdoses kill more people than gun homicides and car crashes combined. In fact, between 1999 and 2015, more than 560,000 people died from drug overdoses. Even as abuse has seemingly decreased, opioid overdose deaths have increased.

In 2015, two-thirds of drug overdoses were linked to opioids, including Percocet, OxyContin, heroin, and fentanyl, which on its own is largely driving the number of opioid deaths.

Americans use more opioids than any other country in the world, with the number of prescriptions in the U.S. last year providing enough pills to medicate every American 24 hours a day for three weeks consecutively. Opioid overdoses kill more than 90 Americans every day, experts say, and the economic burden of opioid misuse costs the country $78.5 billion per year.

Judge Polster previously indicated that if an opioid drug settlement agreement cannot be reached, he anticipates that the first trial would involve an Ohio case and could begin as early as next year.


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