An Ohio federal judge overseeing 2,500 cases accusing several drug companies and pharmacies of fueling the opioid epidemic is asking Cabell County and Huntington attorneys to scale back their outlook in a case in which attorneys said they will seek at least $500 million, as he works to push several cases toward trial.
The lawsuits argue that manufacturers, distributors, pharmacies and pharmacy benefit managers breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the states over the past several years — a duty the lawsuits claim companies have under the Controlled Substances Act of 1970.
It seeks costs to help get people into recovery, as well as regaining money spent by the governments in response to the opioid epidemic. The plaintiffs also are seeking money for future recovery.
U.S. District Judge Dan Polster is close to releasing Cabell County and Huntington’s cases back to West Virginia for trial, but some steps will need to be taken before he will do so, he said in the orders released last week. Polster’s order wants to make the pair’s trial more closely match what the first track case — Summit and Cuyahoga counties in Ohio, which settled most of their claims earlier this year — has already done.
The two counties settled for $260 million with drug distributors and manufacturers last month just hours before trial was to begin.
Among his requests, Polster wants the West Virginia government to limit the type of defendants it will go to trial against to distributors and pharmacies, as well as wanting the attorneys to limit the amount of defendants against whom they are serious about facing in the initial trial. He also requested Cabell County and Huntington limit the amount of claims made against those companies.
“The Court will suggest remand of the ... cases only if plaintiffs pursue their claims against a practicable, triable number of defendants,” he wrote.
In his orders, Polster first severed nine manufacturers and three PBM defendants named in the complaint from being part of the initial trial and said he believes the total number of defendants should be trimmed even further.
He said he does not believe the plaintiffs “actually intend to pursue more than a small number of defendants in a single trial, and certainly not all 14 of the distributor and national pharmacy defendants.”
The plaintiff attorneys were asked to identify the distributor and pharmacy defendants against whom they do not have “true and serious” intention of pursing claims. Anyone not on that list will also be severed from the initial trial.
In its third amended complaint, the pair listed eight claims against the defendants. Polster said he would only send the case back to West Virginia if the plaintiffs dismissed all claims except those claiming public nuisance, racketeering by pharmacies, civil conspiracy and punitive damages. The four are the same claims that would have been tried with the two Ohio counties, if they had not reached a settlement.
The attorneys were given until Friday to inform the court if it wished to voluntarily drop the remaining charges, and against which defendants it plans to go to trial.
As evidence exchange is underway in both cases, Polster said the parties are in disagreement on for what geographic areas some discovery should be released.
The defendants said the scope should be limited to the plaintiff county jurisdiction, while plaintiffs asked the data be broadened to national, or at least include West Virginia, Ohio, Kentucky and Florida.
The plaintiffs said it was needed to create statistics showing how each pharmacy compares generally regarding prescriptions filled for controlled-drugs versus non-controlled drugs; prescriptions paid for with cash versus insurance; prescriptions written by local versus remote physicians and prescriptions filled by local versus remote patients.
Defendants said widening the scope would be a dramatic burden when the information was marginally relevant, if at all.
Polster said he would allow full data to be released from West Virginia, Ohio and Kentucky, but not Florida.
In a statement from National Prescription Opiate Litigation MDL Plaintiffs’ Executive Committee co-leads Paul J. Hanly Jr. of Simmons Hanly Conroy; Paul T. Farrell Jr. of Greene Ketchum, Farrell, Bailey & Tweel LLP; and Joe Rice of Motley Rice LLC released Tuesday, the attorneys agreed there is an importance in the litigations moving forward in a timely manner.
“These are approaches we support. We were further encouraged to see that the Judicial Panel on Multidistrict Litigation (JPML) moved quickly last week to provide conditional approval for these bellwethers to move forward.
“This is the most complex and consequential legal battle of our time. And it’s about bringing a measure of resolution and accountability to one of the country’s most deadly and devastating public health crises. This crisis — unlike many other public health emergencies — was spurred not by chance and accident, but instead by unchecked corporate greed, widespread negligence, and a purposeful failure to abide by established regulatory guardrails and drug enforcement laws.”
Charleston attorney Rusty Webb represents Huntington in its lawsuit.
In other orders, Polster also set an October 2020 trial date for the claims Summit and Cuyahoga counties filed against pharmacies. In a separate order, Polster remained back to their jurisdictions lawsuits filed by the City and County of San Francisco, City of Chicago and Cherokee Nation.