Washington Lawyer - January/February 2020 - 18

FEATURE
OPIOIDS continued from page 16
Those attorneys general "want to run these
cases themselves in state court," says Gluck.
As of press time, 24 states have not agreed to
the Purdue settlement, and others may back
out of their agreement, reports say.
In fact, the state attorneys general are pushing
back against the MDL, arguing that the states
are best positioned to use any settlement
money to resolve the opioid crisis. Before the
trial, they asked that the federal case be postponed because the cities and counties in the
MDL have usurped state authority. An appellate
court rejected that request.

TRANSFORMING THE TORT LANDSCAPE
Lawyers on both the defendants' and plaintiffs'
sides are understandably reluctant to talk in specifics about their work for clients. Many D.C. firms
represent the corporate defendants, including
retail companies, opioid manufacturers, and
distributors of prescription drugs. Washington
Lawyer reached out to attorneys in at least a
dozen D.C. firms who either did not respond
to requests for comment or said that they could
not talk specifically about opioid litigation.
One area that the defense bar is delighted to
offer commentary on is reform in multidistrict
litigation, as well as the societal changes that
have transformed the world of litigation overall.
Excluding prisoners' rights and Social Security
cases, more than 50 percent of the federal civil
docket is made up of multidistrict litigation
cases, says Mark Behrens, cochair of Shook,
Hardy & Bacon's D.C.-based public policy
practice group. The firm is a member of
Lawyers for Civil Justice, an organization
formed to advocate for MDL reform.
In fact, Behrens says, in the last 10 years the
percentage of MDL cases has grown from 30
percent to 51 percent. That increase alone is
reason for change, he says, and Lawyers for Civil
Justice has asked the Advisory Committee on
Civil Rules, which oversees the federal courts,
to make changes to the Federal Rules of Civil
Procedure. In addition, a letter signed by a
number of in-house counsel and members
of the defense bar has also called for changes
to the rules.
But it's not just the volume, Behrens says. "It's
also how the process has morphed from what
we see as its original purpose." Multidistrict
litigation originally had a "laudable goal," says
Behrens, primarily improving the efficiency
of the litigation process.

WASHINGTON LAWYER

The letters to the advisory committee argue
that MDLs allow plaintiffs' lawyers to "stockpile"
claims by using the sheer number of plaintiffs
to "create the impression that they have legitimacy." Not all of those claims are strong, says
the defense bar. And, according to Behrens,
the overall number of claims creates its own
leverage that plaintiffs' lawyers "are hoping
to use to force a settlement."
Plaintiffs' lawyers, hoping for a global settlement in which all of the charges are potentially
settled, "can make a lot of money for less work,"
he says. (Washington Lawyer reached out to
several plaintiffs' attorneys but received no
response.)
In many ways, societal and technological shifts
have also led to the enormous changes in mass
tort litigation overall. Three main drivers of
those changes are globalization, the increasing
speed of technology, and trends in financing,
all of which have accelerated the transformation
of the tort litigation landscape, says Loren
Brown, the New York-based cochair of DLA
Piper's global litigation practice group.

At the end of the day, however,
the question becomes
whether mass tort litigation
is the solution
to the country's opioid crisis.
Improvements in the speed and scope of technology, meaning "the ability to coordinate and
communicate and exchange information freely
without constraints, enables people to pool
resources and is very empowering," Brown
says. In other words, the plaintiffs' bar in the
past had been fragmented. Now, with focused
social media campaigns, the bar can coordinate
resources, extract information, and "team up in
ways that they haven't done before," he says.
These technological advancements also mean
that new tools can be used for discovery.
Algorithms can help to analyze documents,
"and that's just going to continue as technology,
machine learning, and AI platforms become
more able to attack large databases," he says.
While most discovery is still "extremely tedious
and resource-intensive," technology has made
it easier, faster, and more accurate. All of that

JANUARY/FEBRUARY 2020

technology can be applied to the documents
the parties produce in litigation, as well as to
databases of expert witnesses and case law,
Brown says.
Finally, yet another massive change is in the way
mass claims are financed. "The banks and funds
and litigation finance shops with large amounts
of available capital are partnering with litigation
firms to fund the litigation and share the risks,"
taking stakes in cases, says Brown.
"That has a profound impact" on all mass tort
litigation, he adds, allowing firms and litigants
to bring in more money. "Of course, with more
money in the game you have more resolve and
staying power on the plaintiffs' side than you
ever had before."
At the end of the day, however, the question
becomes whether mass tort litigation is the
solution to the country's opioid crisis.
"There's no health law or policy expert who
thinks that litigation is a way to solve a public
health crisis," argues Gluck. "Litigation is the last
resort."
"The whole thing has given a great focus to
the responsibility of the pharmaceutical companies," says GW's Meyers. "They certainly share
the blame, but I don't think they're solely to
blame."
The DEA for years looked the other way at its
revolving door, with people from the government watchdog agency routinely leaving to
work for the very same companies the DEA
was governing. Meyers also believes that the
medical profession is to blame for routinely
prescribing pain medications, which were often
"given out by doctors for the most minor and
transient type of pain," he says.
For all of these reasons, the story of opioid litigation changes by the day. But even if a global
settlement is reached in Ohio, there is still the
question of whether that money will make a
difference.
"It is very important that any settlement
involving the opioid crisis do much better"
than the tobacco settlement, says Meyers, "and
ensure that substantial funds are directed to the
victims of the epidemic and to steps to fight the
current problems caused by the epidemic."
Debra Bruno is a local journalist who writes for the
Washington Post, Washingtonian magazine, and
many other publications.

Washington Lawyer - January/February 2020

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