WASHINGTON – Judges on a national panel must decide whether to consolidate opioid suits of local governments and, if so, whether to send them to West Virginia, Illinois or Ohio.
Defendants agree that if consolidation happens, U.S. District Judge David Faber of the Southern District of West Virginia should preside. Some West Virginia governments recommend Chief District Judge Edmund Sargus in Cincinnati, while others oppose consolidation. St. Clair County, Illinois, recommends District Judge Staci Yandle in Benton, Illinois.
Faber, with 17 actions in his court, has held hearings and issued rulings. Yandle presided over a single action until Oct. 30, when Chief Judge Michael Reagan of East St. Louis assigned four new ones to her.
Decisions rest with the U.S. Judicial Panel on Multi District Litigation, which will hear arguments Nov. 30 in St. Louis.
James Peterson of Hill, Peterson, Carper, Bee & Deitzler in Charleston moved for consolidation Sept. 25 on behalf of counties in Kentucky, Ohio, West Virginia and Illinois. In West Virginia, he represents Kanawha, Fayette, Boone, Logan, Cabell and Wayne counties. He also represents the cities of Cincinnati, Louisville and Birmingham.
Peterson asked the panel to transfer pending and subsequent actions to Sargus, and he offered Yandle as an alternative. He wrote that counties and cities sued McKesson, AmerisourceBergen and Cardinal Health, the nation’s largest distributors of opioid drugs. He wrote that certain actions also named manufacturers Purdue, Teva, Cephalon, Janssen, Endo, Actavis, and Mallinckrodt as defendants.
In his motion for consolidation, Peterson said manufacturers and distributors illegally profited by unlawful sale of dangerously addictive and foreseeably abused prescription drugs. He also asserted claims of racketeering, public nuisance and negligence, and he called for injunctive relief to prevent further unlawful distribution.
The motion claimed damages including costs to abate the nuisance, compensation for past and future expenditures, actual and treble damages and attorney fees.
Peterson noted that in 1970, Congress instituted a careful system to prevent diversion and ensuing abuse of dangerously addictive drugs. He wrote that Congress made defendants responsible for maintaining effective controls and operating a system to disclose suspicious orders.
He claims the defendants deliberately ignored their duty to report and halt suspicious orders, and he says manufacturers falsely denied the danger posed by their pills. He wrote that their front groups and opinion deceived doctors and regulators.
The first reaction came not from defendants but from a prominent plaintiff, West Virginia Attorney General Patrick Morrisey. On Oct. 16, Deputy AG Vaughn Sizemore wrote that the consolidation motion improperly included the state’s case.
“Of the cases identified in the motion to transfer, only the case at bar was brought by a state,” Sizemore wrote, adding that the state predicated its claims exclusively on West Virginia law. He also noted that the state alleged violation of its controlled substances act and its consumer credit protection act.
Sizemore wrote that the only reason the case was included in the motion was because McKesson improvidently removed it. He said Faber would likely remand it to Boone Circuit Court.
As of Nov, 9, Faber had not reached a decision.
Sizemore wrote that if the panel consolidates the state’s case with others, the panel should assign the litigation to Faber.
A division on the plaintiff side appeared Oct. 20 when eight West Virginia local governments opposed consolidation.
The leader of their legal team – John Yanchunis of Morgan & Morgan in Tampa – wrote that transfer would decrease efficiency and convenience. He represents McDowell, Lincoln and Mercer counties as well as the towns and cities of Gilbert, Welch, Kermit, Carlton and Chapmanville. Others representing those government entities with Yanchunis include Truman Chafin and Letitia Chafin of the Chafin Law Firm in Williamson, Harry Bell of the Stewart Bell in Charleston and Mark Troy of the Troy Law Firm in Charleston, and James Young of Morgan & Morgan.
Yanchunis wrote that his clients wholly eschewed reliance on federal law and that their cases depend on the rather unique oversight structure under West Virginia law and the attendant regulations of its pharmacy board. He wrote that they intend to show that specific orders shipped to specific locations were suspicious on their face and distributors were aware of it.
“This is a uniquely and necessarily individualized inquiry,” he wrote, adding that establishing damages would require review of individual municipal budgets, expenses, and costs.
Another plaintiff stepped away from Peterson on the same date when St. Clair County, Illinois, recommended Yandle as first choice.
“Judge Yandle is not currently presiding over a multi district litigation and is eminently qualified in complex litigation to prudently and efficiently steer this litigation,” county counsel Christopher Cueto wrote.
The big three distributors didn’t resist consolidation. AmerisourceBergen, McKesson and Cardinal Health jointly supported it Oct. 20, and requested assignment of Faber.
“Judge Faber is already deeply invested in this litigation,” they wrote, noting that lawyers who filed 47 of the 66 cases subject to the motion filed their first seven cases in the Southern District of West Virginia.
“No other federal case, including those in the Southern Districts of Ohio and Illinois, has advanced beyond filing complaints,” they wrote, adding that Yandle’s court isn’t convenient for any of the parties.
On the same date, retailers opposed consolidation.
For Walgreen's and Kroger, Ronda Harvey of Bowles Rice in Charleston wrote that counties and municipalities in nine states with different statutes and rules brought the actions. She wrote that the suits don’t implicate retail pharmacies of Walgreen's and Kroger, but focus on them as wholesale distributors. She said Walgreen's and Kroger distributed products from their own warehouses on their own trucks to their own stores.
For Rite-Aid, Webster Arceneaux of Lewis, Glasser, Casey & Rollins in Charleston wrote that consolidation would increase inconvenience and expense while delaying resolution. He said it would impose additional costs on litigants and witnesses and that superficial factual disparities at a distance disappeared up close.
He said key questions were profoundly space specific. He also wrote that Faber’s chief judge, Joseph Goodwin, coordinated the actions rather than consolidate them into a single action.
Arceneaux wrote that centralization could benefit Rite-Aid only if the panel centralized the cases in West Virginia.
For CVS, Richard Schirtzer of Quinn, Emanuel, Urquhart & Sullivan in Los Angeles asked the panel to deny consolidation, carve out the West Virginia actions, or consolidate only claims against the big three.
“It would be manifestly unfair to subject the CVS defendants to the dramatically increased burden and costs associated with multi district litigation when CVS has been named in only the four West Virginia cases,” he wrote.
For Wal-Mart, Neva Lusk of Spilman, Thomas & Battle in Charleston wrote that transfer to a multi district court would only create inefficiency and unfairness. She said differences among cases far outweighed common issues of fact.
“Some of the 66 cases assert claims against wholesale distributors only, others assert claims against pharmaceutical manufacturers only, while others assert claims against some combination of distributors, manufacturers, or providers,” Lusk wrote. “Depending on the identity of the named defendants, the complaints in these cases proceed under different legal theories.”
On Nov. 9, Cueto withdrew as counsel for St. Clair County and former Madison County chief judge Ann Callis replaced him.