Opioid Manufacturers Oppose Separate MDL For Infant Addiction Lawsuits

While a growing number of opioid addiction lawsuits are being pursued on behalf of children born dependent on pain killers, drug manufacturers indicate that they oppose establishing a separate multi-district litigation (MDL) for the cases, indicating that the claims should be lumped together with lawsuits filed by governments and other entities over costs caused by the opioid crisis in the United States.

Last year, centralized pretrial proceedings were established for all opioid cases filed by municipalities and other entities seeking damages from manufacturers and distributors of the addictive narcotic medications, including Purdue, Teva/Cephalon, Janssen, Endo, Actavis, and Mallinckrodt, as well as distributors for the medication, including McKesson Corporation, Amerisource Bergen Corporation, and Cardinal Health, Inc.

There are currently more than 1,300 cases consolidated before U.S. District Judge Dan A. Polster in the Northern District of Ohio, for coordinated discovery and pretrial proceedings. However, the litigation is focused on claims for damages stemming from improper marketing and distribution of opiate medications into cities, states and towns nationwide.

A group of plaintiffs filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) last month, seeking to establish a separate MDL for all infant opioid addiction lawsuits, which seek funds for medical monitoring and damages related to Neonatal Abstinence Syndrome (NAS) treatment.

Plaintiffs indicated that insufficient steps are being taken in the original opioid MDL to address the allegations raised in the complaints brought on behalf of infants born dependent on opioids. As a result, the MDL panel is being urged to establish separate pretrial proceedings either in the Southern District of West Virginia or, alternately, the Southern District of Illinois.

In a response (PDF) filed on October 12, more than a dozen manufacturer defendants indicate that they oppose the establishment a separate MDL for addicted infants, urging the JPML to reject the plaintiffs’ motion.

The manufacturers say the cases share common factual issues with other lawsuits in the existing opioid MDL, indicating that separating the cases would create a “dangerous precedent,” by allowing any litigants to claim unique issues and then break off their cases from existing MDLs, and that it would result in the second-guessing of the current MDL judge’s decisions.

On the same day, Amerisourcebergen Corp. filed its own brief (PDF), also calling for the motion for a separate MDL to be rejected. The response notes that the actions contained in the opioid MDL have become more diverse over time.

“Although initially most of those cases involved claims brought by local governments, the Opioid MDL currently includes claims from many other categories of plaintiffs—including Indian tribes, third-party payors, hospitals and medical providers, insurance policyholders, and NAS Plaintiffs themselves,” the response brief states. “Though these different plaintiffs may present some varying legal and factual issues, a common thread unites them: each case presents ‘common factual questions about, inter alia, the manufacturing and distributor defendants’ knowledge of and conduct regarding the alleged diversion of these prescription opiates, as well as the manufacturers’ alleged improper marketing of such drugs.’”

According to a hearing order (PDF) issued earlier this month, the U.S. JPML is scheduled to consider oral arguments on the issue on November 29, at the Daniel Patrick Moynihan U.S. Courthouse in New York, New York.