More than a dozen defendants face numerous claims at next month's trial, which will take place in Cleveland. (AP Photo: Douglas Healey, File)
Manufacturers of prescription opiates lost a key ruling Monday involving public nuisance claims as pressure against them mounts ahead of a closely watched trial next month.
U.S. District Judge Dan Polster of the Northern District of Ohio, who will oversee the Oct. 21 jury trial, refused to toss claims that the opioid manufacturers, which include Purdue Pharma and Johnson & Johnson, created a public nuisance. The ruling applies to two Ohio counties serving as plaintiffs in the first federal trial over the opioid crisis.
"Plaintiffs introduce fact and expert evidence demonstrating material factual issues regarding interference with public health and public safety interests," he wrote Monday. Among that evidence are statistics of opioid-related increases in overdose deaths, instances of neonatal abstinence syndrome, overdose hospital admissions and emergency room visits, and crisis center detoxifications.
"A factfinder could reasonably conclude that this evidence demonstrates an interference with public health and public safety rights," he wrote.
Mark Cheffo, a partner at Dechert in New York, who serves as co-liaison counsel for the manufacturers and represents Connecticut-based Purdue Pharma, did not respond to a request for comment.
"With six weeks until the first federal opioid trial begins in Ohio, Judge Polster has issued an emphatic order that strengthens the claims of American communities when he allowed the plaintiffs' 'public nuisance' claim to move forward," said co-lead lawyers for the plaintiffs' executive committee: Paul Farrell of Greene, Ketchum, Farrell, Bailey & Tweel; Paul Hanly of Simmons Hanly Conroy; and Joe Rice of Motley Rice. "This clears the runway for the communities we represent to demonstrate, with evidence, exactly how opioid manufacturers and distributors created a massive public health epidemic that endangered our entire country."
The ruling is the latest of several summary judgment orders that Polster has issued ahead of the trial, nearly all in favor of the plaintiffs. They include a finding that a jury could conclude, based on the evidence, that the defendants, which also include opioid distributors, caused the opioid epidemic.
It also comes as settlement talks broke down over the weekend between some state attorneys general and Purdue's founders, who are members of the Sackler family, according to news reports, and as another manufacturer, Mallinckrodt Pharmaceuticals, reached a $30 million proposed deal with the two Ohio counties.
More settlements could be underway, said Carl Tobias, a professor at the University of Richmond School of Law.
"I expect they're thinking how to mount a defense, if they can, and whether their exposure to liability is sufficiently great that they need to settle and probably sooner rather than later," he said of the remaining defendants. "So, as we get closer to trial, and more settle out, it seems to me the dynamics will move more people toward settlement, and it's not clear how many will be left at the end and who it will be. My sense is it's likely to be some of the bigger players."
More than a dozen defendants face numerous claims at next month's trial, which will take place in Cleveland. On Aug. 15, Polster granted the plaintiffs' motion to sever some defendants from the trial, including Rite Aid and CVS.
Among the most critical allegations is that of public nuisance, the only allegation in the first trial in the nation over the opioid crisis: a bench trial between the state of Oklahoma and Johnson & Johnson that ended last month with a $572 million judgment.
Recent settlements, such as that with Mallinckrodt, have focused on resolving the claims of the two plaintiffs in the federal trial, Cuyahoga County and Summit County.
"The agreement, if approved, will provide both counties critically-needed resources in the ongoing response to the opioid crisis as well as protection in any future insolvency proceeding by Mallinckrodt," said members of the plaintiffs' executive committee at the time of the Sept. 6 announcement of the settlement. "No one wants the result of this litigation to be mere bankruptcy of companies, but pharmaceutical manufacturers, distributors, and pharmacies that participated in creating the opioid epidemic or knowingly profited from the misconduct must actively participate in abating and helping communities recover from this public health crisis."
Other defendants, Endo International and Allergan, reached settlements last month totaling $15 million.
But those settlements don't resolve claims in additional trials, which Polster has lined up as part of multidistrict litigation that includes about 2,000 cities and counties suing opioid companies.
"They have to think about, 'so what'?" Tobias said of the defendants. "So, they get out of this one, then what? And how many bellwethers do we need to get to some bigger settlement? And is there going to be money left? And that's all hard to tell."
In Monday's public nuisance order, Polster rejected the argument from the manufacturers that illegal drugs, and not their products, caused the opioid crisis, or that their actions were unintentional.
On the latter argument, Polster noted the testimony of Dr. Russell Portenoy, a key opinion leaders paid by the manufacturers, who said manufacturers intentionally misrepresented the risks of opioid use. He also cited the deposition of Richard Sackler, one of Purdue's founders, which indicated that his company falsely represented OxyContin as appropriate for pain management that requires a lower intensity than morphine or for treatments less severe than cancer.
Last week, Polster denied the plaintiffs' motion for summary judgment on their public nuisance claims. He also found that joint and several liability for abatement costs was a question for the jury.
"Whether the opioid crisis constitutes a public nuisance is a question that must await full airing of the facts at trial," he wrote.
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Amanda Bronstad
Amanda Bronstad is the ALM staff reporter covering class actions and mass torts nationwide. She writes the email dispatch Law.com Class Actions: Critical Mass. She is based in Los Angeles.
