Washington Lawyer - January/February 2020 - 16

FEATURE
"Then the states came up with creative arguments - that they were paying out substantial
medical care for those tobacco smokers,"
Meyers says. Those lawsuits brought by state
attorneys general led to a $206 billion settlement in 46 states, and even to this day tobacco
companies pay out $9 billion a year to those
states, he says.
That settlement money has spawned its own
controversy, however, because much of the
payments went to state discretionary funds.
After the 2008 financial crisis, many states used
the money for expenses that had nothing to
do with tobacco treatment and prevention,
such as filling potholes.
Nevertheless, Meyers says a global settlement
appears to be "the model [in the opioid litigation] that pharmaceutical companies will
follow."

GOING AFTER MANUFACTURERS
The opening salvo in what might be called the
large-scale opioid wars took place in Oklahoma.
While other state attorneys general around the
country had sued opioid makers, this was the
first time the manufacturers were being held
liable. In August, Oklahoma District Judge Thad
Balkman ordered Johnson & Johnson to pay
$572 million to help alleviate the opioid crisis in
that state. In September, Johnson & Johnson
appealed that ruling.
Even before the summer trial began, Oklahoma
had reached some $355 million worth of settlements from two other drugmakers, Purdue
Pharma ($270 million) and Teva Pharmaceuticals
($85 million).
The Oklahoma case is significant because it
"determined whether manufacturers will be
found liable for the opioid crisis, and ordered
to pay a great amount of money," Meyers says.
At the same time, some legal observers question
whether the Oklahoma case could be carried
over to other states. The case was founded on
a "public nuisance" claim, which in Oklahoma
meant a narrow interpretation of "things that
annoy," says Donald G. Gifford, professor of torts
at the University of Maryland's Francis King Carey
School of Law. Traditionally, the claim referred
to the idea that a public nuisance is "a violation
of a right held in common by members of the
general public," he says.
Public nuisance claims began in 13th-century
English land disputes, and in 19th-century
America it started to extend to battles over
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WASHINGTON LAWYER

things like the stench from a pig farm.
Eventually public nuisance was applied to
problems like houses that hosted gambling
or prostitution, Gifford says.
"Most states don't have statutes that are quite as
broadly worded as Oklahoma's," Gifford points
out, so it's very possible that the Oklahoma case
will be reversed on appeal. GW's Meyers agrees
that the Oklahoma lawsuit is a "new application"
of the public nuisance claim, but that it "certainly puts pressure on the pharmaceutical
companies in the Ohio case to look and say,
'This changes the cost-benefit analysis.'"

MDL 2804 is the largest
and most complex civil action in
U.S. history, putting some 35,000
accusers, including counties,
cities, tribal groups, hospitals,
insurance plan administrators,
and consumers, up against an
initial 348 defendants.
Whether or not it is a nationally successful
approach, Meyers predicts that before the
appeal is heard, the bellwether Ohio case will
overtake the Oklahoma case.
In Cleveland, a multidistrict litigation (MDL)
civil trial was set for October in federal court
involving 2,500 consolidated lawsuits. Two test
counties, Cuyahoga and Summit, have been
selected to represent the legal arguments of
the other plaintiffs, who contend that "the manufacturers of prescription opioids grossly misrepresented the risks of long-term use of those
drugs for persons with chronic pain." They
also allege that "distributors failed to properly
monitor suspicious orders of those prescription
drugs - all of which contributed to the current
opioid epidemic."
MDL 2804, presided over by U.S. District Judge
Dan Aaron Polster, is the largest and most
complex civil action in U.S. history, putting
some 35,000 accusers, including counties, cities,
tribal groups, hospitals, insurance plan administrators, and consumers, up against an initial 348
defendants.

JANUARY/FEBRUARY 2020

The process of setting up the trial has already
led to several settlement offers and may serve
as a test case for future opioid litigation. Polster
has pushed the sides to settle, says Abbe R.
Gluck, professor of law and faculty director of
the Solomon Center for Health Law and Policy
at Yale Law School.
Grouping all of these lawsuits together in
an MDL is designed so that the thousands of
parallel cases can be consolidated in a federal
courtroom, Gluck says. "That can limit discovery,
facilitate the efficient winnowing down of
claims, and simplify fact finding," she says.
"That's the ideal" in MDL cases, according to
Gluck. In reality, though, "virtually all cases"
settle when they get to that stage. Judge
Polster was "extremely forthright in saying
from the beginning that he thought the cases
needed to settle in the interest of solving
a public health problem," says Gluck.
But at the same time, the challenge of an
MDL like this is that there could be "an infinite
number of claims," Gluck says. Defendants
don't necessarily want to settle "until they can
get their arms around how many people they
have to pay in total."
The defendants, which include drugmakers,
drug distributors, retail sellers, and pharmacies,
are also very different. "All of them have differing roles and potentially differing responsibilities for the crisis. That makes the allocation
of responsibility more complicated," Gluck says.
In September, Purdue Pharma responded by
filing for Chapter 11 bankruptcy, a move that
would temporarily halt the Ohio trial and could
lead to a tentative settlement in both federal
and state courts. With a bankruptcy filing,
Purdue would admit no wrongdoing in the
epidemic and pay out as much as $12 billion
over time. Also settling was Mallinckrodt
Pharmaceuticals, for $24 million in cash and $6
million in drugs to help resolve addiction issues.
In addition, two other drugmakers, Endo
International and Allergan, agreed to pay
$15 million in settlements, followed by
Johnson & Johnson for $20.4 million.
While that might lead to a resolution in the
federal MDL case, a parallel thread is running
through the state courts. The state attorneys
general are not part of the multidistrict litigation consolidation, and they have filed their
cases in state courts, points out GW's Meyers.
continued on page 18

Washington Lawyer - January/February 2020

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