West Virginia Record

Sunday, January 19, 2020

Federal judge officially asks for Cabell, Huntington opioid cases to be sent back to W.Va.

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By Chris Dickerson | Jan 6, 2020


CLEVELAND – The federal judge overseeing the national opioid litigation has requested the cases filed by Cabell County and Huntington be remanded back to West Virginia federal courts and is asking for the ruling to be expedited.

On Jan. 6, U.S. District Judge Dan Polster submitted a Request for Expedited Hearing to the Judicial Panel on Multidistrict Litigation. In the four-page request, he describes his planned approach to the larger litigation as a hub-and-spoke plan.

“The court continues to believe that strategic remand of certain cases is the best way to advance resolution of various aspects of the Opiate MDL,” Polster wrote, adding that he “will remain as the ‘hub’ of the MDL litigation and also the locus for global settlement, while the selected transferor courts will act as ‘spokes,’ supporting this global effort.


“The hub-and-spoke model suggested above is designed to accelerate and facilitate resolution of the Opiate MDL in whole or in substantial part. The MDL court is proceeding with its self-designated tasks with this model in mind. If the JPML concludes the court’s strategy is inappropriate or the particular suggestions of remand are not well-taken, the court will need to modify this model.”

Last month, Polster granted a motion by the plaintiffs in these cases to split their claims against AmerisourceBergen, Cardinal Health and McKesson from the others.

The next step, according to attorney Anthony Majestro, was for Cabell County and Huntington to file motions to dismiss all other claims other than common law public nuisance, civil conspiracy and punitive damages against the three remaining defendants. That happened, and Polster granted those motions.

Then, the following step was for Polster to ask to send the cases back to West Virginia. That’s what he did in his Jan. 6 request.

“What Judge Polster is telling the MDL panel is that he’s ready for them to send these cases back,” Majestro, a Charleston attorney who is one of the lawyers representing Cabell County in its case, told The West Virginia Record. “And he asked to have it expedited because all parties agreed to it. I hope no one objects. Then, (the panel soon) will enter conditional remand order.”

Majestro said his team wants a trial soon.

“We are going to ask Judge (David) Faber for a trial as soon as he has dates available,” Majestro said. “It’s no secret we’d like to get started quickly. We are hoping to ask for a trial to be held in the spring.”

In November, Polster started the process to release some of the Multi District Litigation cases originally transferred to him in the Northern District of Ohio to be heard in their respective districts. He indicated the Cabell-Huntington cases are headed that way.

On Nov. 19, Polster suggested remands of three cases – San Francisco vs. Purdue Pharma et al., Chicago vs. Purdue Pharma et al., and Cherokee Nation vs. McKesson et al. In that filing, Polster also said he “will probably submit additional suggestions of remand at the appropriate time.”

That list included City of Huntington and Cabell County, which the court designated as “Track Two” cases almost a year ago. Those cases would focus on the distributor defendants and pharmacy defendants.

“The undersigned will preside over discovery for a short time and then suggest remand,” Polster wrote.

Charleston attorney Rusty Webb, who is one of the lawyers representing Huntington in its case, said Polster is dividing up these bellwether cases strategically so they can be tried relatively at the same time focusing on different defendants and different causes of action.

“What the judge appears to be doing now is strategically remanding cases, but also limiting the defendants that he recommends each of those plaintiffs will go to trial against, “Webb told The Record. “He wants each track to sue a defendant to determine liability instead of everybody suing everybody for everything. That could mean a better chance for a universal settlement after these first cases are heard. …

“It seems like he wants to release the Cabell and Huntington cases like he did the ones for San Francisco, Chicago and Cherokee Nation.”

In October, drugmaker Teva Pharmaceuticals settled with two Ohio counties just before a trial was set to begin in Cleveland. There was much discussion about other cases settling then, but those plaintiffs mostly have said they want their cases to be heard.

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