ST. LOUIS – Drug distributors defending opioid suits of local governments in the court of District Judge David Faber in Charleston wanted Faber to preside over opioid suits from all across the nation.
On Nov. 30, a hearing was conducted by the multi-district litigation panel at the Thomas F. Eagleton United States Courthouse in St. Louis to hear arguments regarding creating multidistrict litigation for 62 opioid cases that have been filed around the country and, if created, where it should be located.
On Dec. 5, the panel issued an order transferring those cases to an MDL in the Northern District of Ohio before Judge Dan A. Polster. Multidistrict litigation (MDL) refers to a special federal legal procedure designed to speed the process of handling complex cases, such as this drug litigation.
Amerisource Bergen, Cardinal Health, and McKesson recommended Faber at the hearing Nov. 30 hearing. Faber was presiding over 17 suits against distributors.
Cardinal Health counsel Enu Mainigi of Washington spoke for all three.
“I imagine you don’t get many defendants like us who show up asking for West Virginia as the place to go to be transferred,” she said.
Mainigi spoke near the end of the hearing that focused on the difficulty in setting limits on a national proceeding.
Panel chair Sarah Vance, district judge of Eastern Louisiana, asked Mainigi, “What’s the scope? Who’s in and who’s out?”
“I think you can have separate tracks,”Mainigi said.
Vance asked if manufacturers, distributors, and closed distributors should be in. Mainigi said yes to all three.
Vance asked if prescribers, hospitals, and third party payers should be in. Mainigi said those were harder question for the transferee judge.
“You have a theory that is being floated only against the manufacturers which relates to the marketing,” Mainigi said. “We do not market anything, so the distributors would be out for that theory. I think you can accomplish that through separate tracks.
“There are critical threshold issues in this case that may completely turn how this litigation proceeds.”
Mainigi said they relate to whether a city or county can even bring this litigation.
“There are statute of limitations issues,” she told the panel, adding that whether the types of damages these entities seek are ever recoverable is an issue. “There are causation issues of great significance. How does a distributor lead to these opioid deaths?”
Panel member Marjorie Rendell, judge of the Third Circuit appellate court, said, “Doesn’t that argue for non-centralization so that these things can be litigated where God flung them and let those issues be litigated in separate courts?”
“We can’t have 150 different rulings on that issue,” Mainigi replied. “There is one judge in this country, one who has actually for a better part of the year been thinking about most of these issues.
“That is Judge Faber in the Southern District of West Virginia.”
Mainigi said Faber ruled on remand motions, heard robust argument on a motion to dismiss, raised causation issues in the course of it and offered a worst case scenario that a distributor should have reported suspicious orders but did not.
“Is there causation then ultimately for McDowell County to recover for its ambulance cost because of increased opioid abuse?” Mainigi asked. “Do we have that causation thread?”
She said Faber is the furthest along on the issues.
“But he’s not had an MDL,” Rendell said.
In all, 20 lawyers addressed the panel.
Roland Tellis of Baron and Budd, representing Cincinnati, spoke first. He said there were 155 cases in 25 districts, and that there was discussion that there were distinct sets of claims against manufacturers and distributors.
“That perception stems from an erroneous understanding of the claims,” Tellis said. “The duty to report and stop suspicious transactions here is at the heart of all of the claims.
“Manufacturers and distributors together have that duty.”
Vance asked if they carry out their duties in different ways. Tellis said the Drug Enforcement Administration sets quotas on how many pills it will allow each year.
“There was a concerted effort on the part of both of them to ensure that those quotas remain artificially high,” Tellis said. “If a distributor reported a suspicious transaction, it would hurt the manufacturers and vice versa.”
“You’ve got governmental entities, you’ve got personal injury plaintiffs, you’ve got hospitals, you’ve got union trust funds, you’ve got third-party payers,” Vance said, before asking Tellis what to do with them. Tellis said governmental entities are talking about increased cost to deal with addiction.
“Personal injury plaintiffs don’t have those costs,” he added.
Panel member Catherine Perry, chief district judge for Eastern Missouri, said there was at least one wrongful death case.
“There’s got to be more than that if 800 people a day are dying,” Perry said.
“As long as the claim arises under this duty that you should have reported and stopped suspicious transactions, they ought to be in,” Tellis said.
“The third-party payers and the personal injury plaintiffs don’t have to deal with all of the hurdles of whether or not you can sue for these kind of damages that the political subdivisions do under the laws of every jurisdiction,” Vance added.
For Tacoma, Washington, Derek Loeser recommended the state’s Western District.
“The MDL is not going to solve all problems but if it speeds things up it is absolutely worth doing,” he said.
Ann Callis, representing St. Clair County, Illinois, recommended District Judge Staci Yandle of the state’s Southern District.
“Has she ever had an MDL?” Vance asked.
“No ma’am, she does not,” Callis replied.
“And you want to give her this one?” Vance asked.
Callis said, “Yes ma’am,” Callis replied.
“It will be the last one,” said panel member Charles Breyer, district judge in Northern California.
Kristal Baich, representing 48 Wisconsin counties, recommended Judge Lynn Adelman of the state’s Eastern District. She said Adelman has effectively handled multiple MDL’s.
Shelly Sanford of Watts Guerra, representing two Texas counties that have filed and others that haven’t filed, recommended Breyer.
Breyer replied, “No. No.”
Sanford also recommended Judge Robert Pitman in Austin.
Eric Young, representing health and welfare funds of two Pennsylvania unions, said he wouldn’t have a problem with a separate MDL for third-party payers.
Patrick Barthle of Morgan & Morgan in Florida opposed consolidation on behalf of eight West Virginia cities, towns and counties suing distributors but not manufacturers.
He said each claim is based on specific shipments to specific locations in and around an area.
He said it isn’t a question of a distributor sending too many opioids to the United States, but a question of a specific shipment to the town of Kermit in Mingo County.
“They didn’t target your jurisdiction under your theory of the case, did they?” Perry asked.
“I don’t know that they specifically targeted it,” Barthle answered.
“So you’re going to have some executive saying, ‘Yeah, we sat there and said I’m going to go after Kermit, Nebraska?’” Perry responded.
“I think we would have to know, was there discussion about this area, what did the employees of these distributors know about those areas, what was going on in those pain clinics,” Barthle said.
For Chicago, Linda Singer argued that consolidation would delay an opioid suit the city filed against manufacturers only in 2014.
Vance asked her the difference between manufacturers and distributors.
Singer said the complaint alleged that five manufacturers engaged in deceptive promotion, misrepresented the risk of addiction, and overrepresented the ability of doctors to manage the risk. She said consolidation would effectively stay the case for 18 months and that people who have become addicted would love to go back to 2014.
“In the meantime, city of Chicago’s case gets stopped,” Singer said. “Defendants continue to engage in the same practices.”
Lee Javins, private counsel to West Virginia Attorney General Patrick Morrissey, opposed consolidation of a suit Morrissey filed in Boone County.
Defendants have removed the suit to District Court in Charleston, where Javins has asked Faber to remand it to Boone County.
“It’s my hope that we are temporarily here on removal,” Javins told the panel, adding that his case specifically disavowed federal jurisdiction. “We know how to litigate these cases. Twelve of them have litigated to resolution.
“We are as far along as the city of Chicago.”
Panel member David Proctor, district judge in Northern Alabama, asked if Faber deferred ruling until the panel decided or if it was just hanging in the balance.
“I guess I’d have to say it’s hanging in the balance,” Javins said.
“We wouldn’t be offended if he ruled on it,” Vance said.
“I advised the court that he could wrap this up in a one paragraph order, and I’m a little concerned that he hasn’t done that yet,” Javins added.
As of Dec. 4, Faber hadn’t reached a decision.
CVS counsel Richard Schirtzer opposed consolidation for distributors CVS, Wal-Mart, Walgreens, Kroger, SAG and Rite Aid. He said the difference between manufacturers and distributors would raise very different issues in discovery.
Breyer said he understood things would go on in the MDL that don’t concern distributors, but asked if good things would go on that do concern them.
“At what point does what doesn’t concern us swamp what does concern us?” Schirtzer asked, adding that CVS, Rite-Aid and others never distributed oxy. “We are going to be dragged into a series of 154 cases that are going to be about oxy for clients who have never distributed oxy.”
Robert Ridge, counsel for Top RX, opposed consolidation for small distributors.
“Our clients in most cases are contributing a fraction of the opioids,” Ridge said, noting that suspicious order issues would be different for smaller clients than for larger clients.
Pfizer counsel Loren Brown adopted a unique stance as an interested party with no suits pending against his client.
He said Pfizer was named in five government cases and in all five Pfizer secured voluntary dismissals.
Vance asked what Pfizer did, and Brown said it shared very basic marketing and sales information.
“If we don’t get a carve out in the order, we believe there is a substantial chance that we are going to end up getting named in hundreds of cases,” Brown said.
“We can’t send out a general order that no plaintiff’s counsel can sue you,” Proctor said.
“We are not looking for any kind of immunity,” Brown replied. “It’s just that the advantages of an MDL, which I almost always argue for, are far outweighed by the disadvantages here.
“Even the best MDL judge and the best tracking system would not be as efficient as we have been up until now getting ourselves out of these cases.”
Proctor said nothing precluded him from employing the same strategy in an MDL.