The Court overseeing the opioid multidistrict litigation (MDL) in Cleveland, Ohio continues to make significant progress in adjudicating the bellwether cases set for trial later this year. On a daily basis, we are learning new information concerning the pharmaceutical industry’s role in fueling the opioid crisis. As expected, these companies are fighting the Plaintiffs on all fronts to ensure this information does not see the light of day.

For example, U.S. District Judge Dan Polster denied a motion by several Defendants seeking a gag order precluding Plaintiffs’ lawyers and a sitting governor from speaking outside the court about the litigation based on evidence obtained thus far. Several Defendants in the MDL sought the gag order and asked for sanctions after former Ohio Attorney General Mike DeWine, who is currently governor, and two Plaintiffs’ lawyers in the MDL appeared in a “60 Minutes” segment about the opioid epidemic. The Defendants argued that Gov. DeWine and the lawyers disclosed data shielded by protective order and improperly inflamed public opinion (and the potential jury pool) in advance of bellwether trials scheduled to take place in September of 2019.

Judge Polster denied the motion without issuing an order discussing the merits of the Defendants’ contentions. As you can imagine, high-stakes litigation such as this involves sensitive information. Consequently, Judge Polster imposed a gag order on settlement discussions and entered a strict protective order barring disclosure of prescription opioid data maintained by the U.S. Drug Enforcement Agency.

Judge Polster has done an excellent job balancing the need to keep certain information confidential while ensuring the full extent of the opioid crisis is brought to the public’s attention. If the Court entered the gag order sought by the Defendants, it would have likely chilled Plaintiffs’ lawyers from discussing publicly made allegations with the media. The opioid crisis is an issue of national importance, so the public must know exactly how it started and how to address it. However, all lawyers are bound to follow rules and ethical standards when discussing pending litigation. Additionally, any gag order from the court must be followed to the letter.

Also, West Virginia is set to play a more prominent role in the Opioid MDL. Judge Polster named lawsuits filed by Cabell County and City of Huntington in West Virginia as Track Two bellwether cases. This designation is designed to further assist the Court and the parties in analyzing the potential liability of the Defendants in the litigation.

Judge Polster informed that fact discovery and motion practice completed to date in the Track One cases included “a large, but incomplete, fraction of the issues and parties relevant to the MDL.” One of Judge Polster’s main concerns was that the Track One cases did not include all the retail pharmacies named in the MDL. Moreover, as the last issue of the Report discussed, several issues mentioned in Judge Polster’s order on motions to dismiss concerned Ohio-specific causes of action and laws that do not apply to other states.

Specifically, the order concluded that the Ohio Product Liability Act did not abrogate Plaintiff Summit County’s common law public nuisance claim. It also held that the County’s statutory public nuisance claim is limited to injunctive relief. Finally, Judge Polster adopted the dismissal of the City of Akron’s drug-related nuisance claim for lack of standing.

Because thousands of lawsuits filed nationwide have been consolidated in the MDL, Judge Polster requested additional briefing to “better understand state-specific variations in the law” and to address the “viability of statutory and/or common law claims for public nuisance in each State and territory where any MDL Plaintiff is located.”

The Court had also ordered the parties to meet and confer and submit a proposed case management deadline to Special Master Cohen on or before Jan. 15, 2019. Fact discovery was set to begin on Jan. 25, 2019.

Finally, Special Master Cohen continues to oversee specific discovery disputes between the Plaintiffs and Defendants. According to the Special Master, the most “vexing” concerns the Plaintiffs’ responses to interrogatories propounded by the manufacturer and pharmacy Defendants, which ask the plaintiffs to identify “(1) specific, inappropriate opioid prescriptions, and (2) specific persons who became addicted due to those prescriptions.” Special Master Cohen ruled that the Plaintiffs must either answer the interrogatories fully with the specific information or refuse to answer them on the condition that they will not assert that any specific prescriptions were unauthorized but will, instead, rely solely upon aggregate proof at trial.

Likewise, the Plaintiffs are seeking more information regarding the Defendants’ claim that intervening, supervening, and superseding causes (e.g. criminal activities) are to blame for fueling the opioid crisis. If Purdue plans to use this defense, Special Master Cohen’s Discovery Ruling 13 requires Purdue to state how that cause intervened or supervened and identify 10 specific examples of each cause.

On Jan. 29, Judge Polster continued the trial of the first bellwether case. It will now start on Oct. 21, which is only a seven-week delay in the trial. We expect to see the opioid litigation progress significantly this year. We will, of course, keep you updated along the way.

Because of the enormity of the opioid litigation, and Alabama’s personal involvement in the multidistrict litigation (MDL), our firm put together an “Opioid Litigation Team,” which includes these lawyers: Rhon Jones, Parker Miller, Ryan Kral, Rick Stratton, Will Sutton and Jeff Price. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments, as well as other entities in the MDL, and individual claims on behalf of victims. If you need more information on the opioid litigation contact one of these lawyers at 800-898-2034.

Jere Beasley, Beasley Allen Attorney
Jere Beasley

Jere Beasley, the founding member of Beasley Allen Law Firm, has practiced law as an advocate for victims of wrongdoing since 1962. He was the lead Beasley Allen attorney in the record $11.9 billion award against ExxonMobil Corp. on behalf of the state of Alabama.


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