Opioid Lawsuits: DoJ Seeks to Participate in Settlement Talks

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.

The Washington Post ran a long feature yesterday, , discussing the role of ongoing litigation in assigning blame and assessing damages for  the opioid crisis.

Multiple lawsuits seek to hold pharma companies and other defendants accountable for the costs and consequences of the opioid epidemic. Unsurprisingly, given the scale of the crisis, there are numerous deep-pocketed targets. These lawsuits have been filed by the Department of Justice (DoJ); state attorneys general; and plaintiffs’ attorneys on behalf of cities, counties, local municipalities and Indian tribes. In this post, I’ll focus on this third category.

Contrary to a bizarre claim in the Post piece that claims multi-district litigation (MDL) actions are rare, it’s not out of the ordinary  for lawsuits that involve multiple plaintiffs, located in many jurisdictions that consider common issues, to be consolidated in one federal lawsuit, before one judge. The MDL procedure  is intended to increase efficiency, lower costs, and forestall multiple lawsuits throughout the country from resulting in  numerous contradictory outcomes.

In the opioid action, more than 400 lawsuits have been consolidated into an MDL before federal district court judge Dan Polster who sits in the northern district of Ohio.

Those readers with long memories will recall that plaintiffs’ attorneys and state attorney generals played key roles in achieving the , under which the big five tobacco companies agreed to restrictions on sales and marketing of cigarettes, and sizeable payouts to states for smoking-related health care costs.

Judge Polster has pressed the parties to concentrate on achieving a rapid settlement of these claims, rather than engaging in interminable litigation.  As the New York Times reported in March, in :

During the first hearing in the case, in early January, the judge informed lawyers that he intended to dispense with legal norms like discovery and would not preside over years of “unraveling complicated conspiracy theories.” Then he ordered them to prepare for settlement discussions immediately.

Not a settlement that would be “just moving money around,” he added, but one that would provide meaningful solutions to a national crisis — by the end of this year.

“I did a little math,” he said, alluding to the rising number of overdoses. “About 150 Americans are going to die today, just today, while we’re meeting.”

Polster believes that once necessary preliminary fact gathering and theory formulation has occurred, as litigation proceeds,  it yields diminishing returns, and thus, the parties should move to resolve their dispute as quickly as possible. According to The New York Times:

He would not address specific issues in the opioid litigation. But he opened a window into his thinking, generally, about why he prefers rapid settlement rather than trying cases. He that when parties have gotten this far down the road in a lawsuit, they already have at least 80 percent of the information they need to negotiate; the longer litigation continues, he said he has found, the more entrenched each side can become.

This  emphasis has been controversial. Given the multiple parties and difficult issues involved, many have concluded that Polster’s insistence that the MDL be settled before the close of 2018 is completely unrealistic.

Cost and Scope of Opioid Crisis

Yesterday’s Washington Post article  focuses  on the human and economic costs of the opioid epidemic and is less astute on the current legal maneuvering:

The crisis also is affecting the national economy, something that could drive a settlement well past record-breaking territory. that the economic cost of the opioid crisis was $504 billion just in 2015, or 2.8 percent of that year’s gross domestic product. Altarum, a nonprofit organization that studies health care, estimates the opioid crisis from 2001 to 2017.

Attorneys argue that some municipalities have spent tens of millions of dollars trying to fight opioid-related concerns. Health-care costs for municipal employees have skyrocketed. Jails are packed. Counties have purchased thousands of doses of a drug used to reverse overdoses, and first responders are working overtime, often reviving the same people over and over again.

Mark Chalos, a lawyer who represents communities in Tennessee and some unions, said the toll is tremendous, “a preventable catastrophe . . . made entirely by an industry that operates in plain view.”

And, guess what? This crisis didn’t start on Trump’s watch. The Washington Post makes clear that the federal government was monitoring the mushrooming crisis during the last decade:

The judge also put a protective order on what lawyers say is likely the linchpin of the case: information from a database kept by the Drug Enforcement Administration that monitors the flow of prescription painkillers from manufacturer to distribution point.

After initially resisting, the DEA said it would disclose some of the data, including identifying the manufacturers and distributors that sold 95 percent of the opioids in each state from 2006 to 2014. Lawyers say the full set of data could provide a road map for the crisis, perhaps showing a correlation between where the drugs flooded and where people died. . [Jerri-Lynn here: I bet they are.] Polster thus far has sealed any data released to the parties.

The data is confidential, but some information that has been released and analyzed is staggering: In two instances, millions of pills were shipped to pharmacies in

Not that Trump performance has been that much better. See this press release from last week that lists the pathetic steps the DoJ under Attorney General Jeff Sessions is taking to address the crisis:  .

DoJ Seeks to Join Settlement Talks

Although not a party to any of the MDL lawsuits before Judge Polster, the DoJ on 2nd April , as summarized in  this Wall Street Journal account,  :

In its Monday filing, the Justice Department asked Judge Polster to let the government join settlement talks and serve as a “friend of the court” to provide data and information relevant to resolving the case.

Attorney General Jeff Sessions added in a statement that, “We are determined to see that justice is done in this case and that ultimately we end this nation’s unprecedented drug crisis.”

While the federal government won’t technically be a plaintiff, the move is aimed in part at securing some portion of any eventual settlement for the federal treasury, the Justice Department said.

The motion says DOJ’s involvement in settlement talks is one avenue for the government “to seek reimbursement for its direct and indirect costs of providing medical care to opioid users” and notes that the government’s “substantial financial stake” in combating the opioid epidemic “has implications for the proper allocation of any monetary settlement.”

The New York Times account I’ve quoted above reported that Judge Polster has solicited the input of state attorneys general– even though they are not parties to the MDL litigation. That clearly is a sensible position, as defendants are unlikely to agree to any settlement that excludes state lawsuits and so state attorneys general will certainly have to be involved in any ultimate resolution..

Likewise,judge Polster will also likely be open to allowing DoJ participation– even though the form in which this is currently taking suggests that the DoJ may be more interested in fence sitting, rather than moving toward a comprehensive resolution, according to the Wall Street Journal:

The federal government has joined other so-called multidistrict litigation cases, including the 2016 case against over its diesel-engine emissions and tobacco litigation in the 1990s. But typically, the government has filed its own lawsuit, rather than asked to participate as a friend of the court, said Elizabeth Burch, a law professor at the University of Georgia who studies multidistrict litigation.

Paul Hanly, a New York lawyer with Simmons Hanly Conroy LLC who is one of the lead plaintiffs’ counsel in the case, called the Justice Department’s move “fence sitting” and said it is “neither unexpected nor unwanted.”

It seems to me that’s really the crux of the problem. Most of those who could help stem the opioid crisis are more interested in fence sitting, hoping the problem is will simply go away, rather than focusing on what must be done, now.  Judge Polster seems to grasp the urgency of the situation and understand that absent action, more victims will die

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31 comments

  1. brightdark

    I’m sorry but how is any of this actually going to help? The ‘opioid crisis’ has little to do with the drug companies and more with already illegal heroin & fentanyl. All this is going to do is make a bunch of lawyers very wealthy.

    In the meantime the people who NEED the opiod drugs for pain relief so they can be functional are treated like criminals. Who is doing anything for them?

    1. tegnost

      because the prescribed opioids are replaced by heroin et al after the patient loses coverage because they’ve been made addicts for the benefit of the the sackler fortune, but their insurance will no longer provide them with the drug they’ve become addicted to. This begs the question, “who is doing anything for them?”
      FTA…“I did a little math,” he said, alluding to the rising number of overdoses. “About 150 Americans are going to die today, just today, while we’re meeting.”

    2. JimTan

      “Follow the pills and you’ll find the overdose deaths. The trail of painkillers leads to West Virginia’s southern coalfields, to places like Kermit, population 392. There, out-of-state drug companies shipped nearly 9 million highly addictive — and potentially lethal — hydrocodone pills over two years to a single pharmacy in the Mingo County town. Rural and poor, Mingo County has the fourth-highest prescription opioid death rate of any county in the United States. The trail also weaves through Wyoming County, where shipments of OxyContin have doubled, and the county’s overdose death rate leads the nation. One mom-and-pop pharmacy in Oceana received 600 times as many oxycodone pills as the Rite Aid drugstore just eight blocks away. In six years, drug wholesalers showered the state with 780 million hydrocodone and oxycodone pills, while 1,728 West Virginians fatally overdosed on those two painkillers, a Sunday Gazette-Mail investigation found. The unfettered shipments amount to 433 pain pills for every man, woman and child in West Virginia.”

    3. Ford Prefect

      Big Pharma was able to convince doctors that modern opioids are not addictive. So they started being prescribed as the logical next step up from Mobic. Once millions were hooked, then they may not have been able to keep their prescriptions, or their prescriptions were not strong enough as opioids so have rising thresholds of effectiveness. So then they start on illegal heroin/fentanyl.

      After each major war in the past 200 years, there was a rise in opiate addiction due to soldiers who got morphine for war wounds. Now it is physically disabilities from blue-collar work etc. which is the primary initiator.

      BTW – we now have an Attorney General who believes marijuana is the spawn of the devil and is as bad or worse than opioids even though it appears to be quite effective in pain relief, has much less addiction potential, and almost no potential for death by overdose.

      1. coquillette

        I got bitten by a tick and developed neuroborreliosis, subacute chronic meningeoencephalitis. I had brain surgery to be fitted with a vp shunt so my intracranial pressure is kept in check but it’s not a panacea. I still have a lot of pain because the pressure crushes cranial and spinal nerves. I can’t work, I can’t drive, I am mostly housebound. Can’t do anything really. I can’t get effective pain relief (opioid) because of this hysteria. 15 millions are in my position. Human Right Watch is getting involved because we are being tortured and abandoned by doctors.

        Why do you care if I am addicted if it means I can have a life without so much pain? (And I am not addicted, I am dependent, big difference).

  2. Arthur J

    There was a study whose results were published in an article on the NationalPost (Canadian newspaper) that reported the addiction rate for people prescribed narcotics for an actual medical condition was between 2 and 12 per cent IIRC. People who take narcotic painkillers for actual chronic pain issues become addicts at a very low rate. It’s the people who take other people’s drugs or just experiment with them that become addicted. That’s not the fault of the drug companies.
    Many of the studies you find talk about how many people are addicted to opiods, or die, by age category or whatnot. It particularly irritates me that the generic term “opiods” is used when, as brightdark notes above, it’s fentanyl laced heroin that is killing people, not prescription oxycodone taken at it’s prescribed dose by the patient for whom it is intended.
    People may indeed be abusing drugs. How is this any different than people abusing alcohol ? It isn’t, and yet I don’t see any alarm about the alcohol epidemic that kills thousands every year through direct cause like death from cirrhosis or indirect like death by drunk driver. Why is suicide by narcotic outed as such a problem ? People commit suicide all the time, where is the outrage at bridge builders for allowing people to jump off their creations ? Hypocrisy abounds at all levels regarding narcotics thanks to the modern Temperance Union mentality of so many who seem to think their opinions should be law.
    Frankly I consider the issue to largely be a scam orchestrated by the participants to either extract money from the government for rehab programs and lawyers to file richly paying lawsuits.
    I also have little patience with idiots like Sessions who say “oh, just take some ibuprofen and tough it out”. The only people who say that are those that have never experienced actual severe pain. I so want to take one of those people, tie them down and hold a lit blowtorch to their knees and say “Ok, here’s a couple of extra-strength naproxen, let me know when you feel good enough to go dancing”.

    My tone is intemperate because as a narcotic user for chronic arthritis pain, it incenses me that some nanny-state dogooder thinks they will save me by preventing anyone prescribing me a life-saving pain-killer. At least here in Canada the government is less strident about the issue. I’m a little surprised that in the US, where gun violence is such an issue that there aren’t many occurrences of doctors being killed by patients for cutting them off from narcotic pain relief.

    1. bob

      “How is this any different than people abusing alcohol ?”

      Where’s the jump in people dying from Tequilla poising over the past 10 years?

      Or the massive fortunes being created and maintained by the huge, illegal sales of opiods? (I know, I know, you can’t call these very wealthy, very well connected people “drug dealers”)

      “In six years, drug wholesalers showered the state with 780 million hydrocodone and oxycodone pills, while 1,728 West Virginians fatally overdosed on those two painkillers, a Sunday Gazette-Mail investigation found.

      The unfettered shipments amount to 433 pain pills for every man, woman and child in West Virginia.”

      1. Arthur J

        It’s hardly the manufacturer’s fault if they meet the demand for a government controlled and regulated product. Unless it’s the drug maker writing the prescriptions, how is it their fault for how many prescriptions are written ? As for exploding rates, I would ask what’s changed ? What’s different now than twenty years ago, that can be attributed to the drug manufacturer ? Did Purdue buy every medical school in the country or something ? Bribe everybody in WV to beg for an Oxycontin script ? In comparison automobile deaths have exploded since 1905, but there doesn’t seem to be much concern about that.
        The numbers also don’t seem very high. Census.gov says 20% of WV population is under 18. So that leaves 1.44 million adults of the 1.8million total. That’s 541 pills for every adult in six years, is 90 pills per year. Apparently the people of WV are weak; I personally consume over 1400 Oxycodone pills per year. Anyway, at 4 pills per day (20mg twice a day) is 22.5 days supply. So this terrible epidemic is every adult in WV taking a narcotic for three out of 52 weeks in a year. Obviously that calls for burning down the nearest CVS and Walgreens toot sweet.
        Which is not to say that there isn’t a problem. 288 people die each year in WV from narcotic overdose according to that article while only 242 are killed by automobile, so it seems it really is an epidemic.

        1. bob

          The last line of any losing argument-

          “242 are killed by automobile”

          The rest is just a giant pile of straw. For instance-

          “Obviously that calls for burning down the nearest CVS and Walgreens toot sweet.”

          Who is proposing that?

        2. Tomk

          One thing that changed about 20 years ago was that doctors were required by new regulations and recommendations to question every patient about pain, and try to deal with it. This change was brought about my drug company pressure. About the same time new time release opiates were marketed as non-addictive, which the drug companies knew was false, and doctor’s should have.

          The idea that the government was effectively controlling and regulating opiates is wrong, Massive wholesale shipments to small counties in various places around the country, which fed a black market of pill mill doctors and small time dealers addicting young people all over. Many did and do OD on pharmaceuticals, though now apparently heroin and fentanyl are more commonly the cause.

          The problem is real. In my small Maine county dozens, maybe hundreds are dead and everyone is affected. Many were introduced to opiates by doctor’s prescriptions, typically unneeded, for such things as sprained ankles or wisdom teeth removal. We survive pain, it is part of living.

          Opiates are not that effective long term for chronic pain, there are ohter ways of dealing with it. Opiates should only be prescribed for extreme acute pain, or for end of life pain. We need to find a way to transition the chronic pain sufferers to more sustainable ways of dealing with the pain. The collateral damage that easy availability creates is just too much.

        3. Peter L.

          Hi Arthur J,

          I thought it might be a good exercise to take your questions seriously and try to answer them as such:

          1. Unless it’s the drug maker writing the prescriptions, how is it their fault for how many prescriptions are written ?

          Drug manufactures are at fault because they promoted their product to the public and doctors with the goal to increase sales no matter the consequences.

          2. As for exploding rates, I would ask what’s changed ? What’s different now than twenty years ago, that can be attributed to the drug manufacturer ?

          (Lots of things are different. For example there was a financial crisis and there is continuing, worsening inequality allowing drug manufactures to exploit hardships and stress we face in these conditions.) As for the drug manufactures, they invented new products (like pills they falsely claimed would reduce or eliminate risk of addiction) and marketed them as being safe, when they knew they were not.

          3. Did Purdue buy every medical school in the country or something ? Bribe everybody in WV to beg for an Oxycontin script ?

          No.

          1. coquillette

            The CDC just admitted that it inflated its numbers by not separating prescription opioid from other opioid. When all is sorted out the number of overdose is in the 10,000 – 15,000 range. For comparison NSAID deaths are 16,500 and Alcohol is 80,000.

            But now millions of pain patients are getting the boot and this will save the healthcare insurance billion. Million of people who can’t live without opioid because the pain is too severe. The chronic pain community is one of the most vulnerable. Disabled with chronic and incurable conditions, they often don’t work and they are a drain on society. Now they are pushed toward suicide and illegal drugs.

            Who is exploiting hardship and misery?

            I posted several links on the subject but it hasn’t been approved (and probably never will be).

            1. coquillette

              And 75% of overdose with prescription painkiller never had a prescription in the first place.

  3. bob

    “Judge Polster has pressed the parties to concentrate on achieving a rapid settlement of these claims, rather than engaging in interminable litigation.”

    This whole scheme sounds like the National Mortgage Settlement

    Is Kamala Harris going to have to show her Progessive™ bonafides again and offer to jump in front of the mob and bring the parade to a close, before it threatens the poor drug dealers?

    I know she doesn’t have any standing, but maybe her old buddy, Steven Mnuchin can help?

    Bipartisanship is the future!

    1. bob

      Also adding that the effects that the drug dealers are going to have is nowhere near known yet. Opiate abuse has a very, very long tail.

      Judge Polster could be seen as trying to limit the potential damages by calling for a quick settlement.

    2. Fraibert

      The nature of the MDL procedural device is that the cases are sent back to the originating jurisdictions for trial. Judge Polster only has jurisdiction over pretrial events such as motions to dismiss and discovery. In that sense, it’s somewhat misleading to describe the all the cases as consolidated.

      As a result, if settlement is not achieved under Judge Polster’s watch, the cases will proceed back to many different venues, and each will have to be settled separately. For better or worse, this is the best time for a global agreement between the involved parties.

      1. bob

        “For better or worse, this is the best time for a global agreement between the involved parties.”

        I believe it is worse. Was I unclear on that?

        1. Fraibert

          I got that but am adding an extra consideration.

          It may be even less desirable to those harmed to be a plaintiff in one of dozens or more lawsuits floating around, each with a different potential date of conclusion (some courts are going to get the case to trial much faster than others) and the possibility of differing outcomes on similar facts (different judges or juries reaching different verdicts).

          That’s all I am saying.

          1. bob

            “I got that but am adding an extra consideration.”

            No, you’re not. You’re ‘adding’ the consideration that the judge is talking about. There’s a story about it above.

  4. HotFlash

    There, out-of-state drug companies shipped nearly 9 million highly addictive — and potentially lethal — hydrocodone pills over two years to a single pharmacy in the Mingo County town. … One mom-and-pop pharmacy in Oceana received 600 times as many oxycodone pills as the Rite Aid drugstore just eight blocks away.

    And please to remember, shipped is not the same as received. If you were shipping drugs for illegal distribution, wouldn’t you fill in all the forms? Mom and pop might be the dealers, but you know, the shipper has to fill in the forms. From where I sit, mom and pop were less likely to figure it out than Rite-Aid, which, after all, probably gets a discount based on quantity, which would entail Rite-Aid HO seeing the sales figures. Mom and pop, on the other hand, wouldn’t ever know.

    I also seem to remember in the ’60’s that it seemed that the PharmCo’s recorded shipping several times more Quaaludes than were prescribed by doctors, and IIRC, the DEA or somebody sternly wagged a finger. Anybody remember that?

  5. HotFlash

    Thanks for this, Jerri-Lynn. The opioid epidemic disturbs me deeply, as I wonder if the Endless War in Afghanistan has anything to do with the supply of the raw materials. I presume that opium is a raw material? I don’t know and although I did a cursory search, got to ‘synthetic opioids’ and soon got over my head in unpronounceable names and molecular diagrams. If that is the case, though, I have to wonder if the CIA is involved, as this is habitual. In which case, there would be tie-ins to the drug mfrs (Sackler/Purdue etc.), huge $$$$ and, well, it would be dangerous to pursue.

    I also remember that when the DoJ won that honking big settlement from the tobacco industry back in 2005, then the Bush administration , from $130 billion to $10 billion.

    So, in conclusion, with the CIA possibly (probably, in my view) involved, the billionaires of Big Pharma, and now the the DoJ getting involved in the settlement, I predict that wrists will be slapped with noodles and trial materials will meager to begin with and will remain sealed.

    1. AbateMagicThinking but Not Money

      Aggregation of Legal Cases:

      Constancy In Law is freedom?

      The opioid thing is fascinating because it brings into focus so many issues that make the US so perplexing to us foreign US watchers. If the US is united as a nation, the commonalities would be aligned, and there would not be so many conflicting legal entities.

      It is hard to know what American freedom is. Toke in California after the appropriate bureaucracy, but go to jail elsewhere. Practicalities do not follow natural or imposed boundaries and neither does human nature.

      The experiment of ‘states’ rights’ combined with corporations’ limited liability and divergent (and ignored) federal laws seem to be tearing the US apart; if not tearing it apart, slowly poisoning it. The constitution seems to be a tangle of anachronisms – the Second Amendment being a prime example (I’m talking ‘militia’ here).

      Am I wrong in this point of view?

      Pip-Pip

      1. JBird

        Wrong would be overstating it. Incomplete might be better.

        325 thirty million people, 3.8 million square miles, with very different regions. The South is not like New England, both are very different to Washington State, then there is Puerto Rico and so. Then there’s the various Indian nations.

        There very well might be some changes needed, but trying to impose uniformity across the entire country would create conflict and probable Civil War, part 2. And it would be an imposing because we have never be able to completely agree on anything.

        I think the massive systemic corruption is what is being noticed; it’s certainly making everything more dysfunctional; increasing it is often the intent.

  6. RonWilson

    Folks:
    This opiate crisis is STATE policy.
    The DEA knows with precision who is supplying opiates –
    “The judge also put a protective order on what lawyers say is likely the linchpin of the case: information from a database kept by the Drug Enforcement Administration that monitors the flow of prescription painkillers from manufacturer to distribution point.
    After initially resisting, the DEA said it would disclose some of the data, including identifying the manufacturers and distributors that sold 95 percent of the opioids in each state from 2006 to 2014. Lawyers say the full set of data could provide a road map for the crisis, perhaps showing a correlation between where the drugs flooded and where people died. Congress also is keen on obtaining the database. [Jerri-Lynn here: I bet they are.] Polster thus far has sealed any data released to the parties.
    The data is confidential, but some information that has been released and analyzed is staggering: In two instances, millions of pills were shipped to pharmacies in tiny West Virginia towns.”

    The Congress has unanimously passed law to prevent the DEA from acting – from Wapo
    “The Justice Department is urging Congress to rewrite legislation, passed at the pharmaceutical industry’s behest, that has undermined the Drug Enforcement Administration’s efforts against companies suspected of violating the law.
    The Ensuring Patient Access and Effective Drug Enforcement Act was pushed through Congress in 2016 by a small band of lawmakers backed by a powerful array of drug companies. The legislation was the subject of a joint investigation by The Post and “60 Minutes” in October.
    [The Drug Industry’s Triumph over the DEA ]
    The initial version was written by a drug industry attorney who once worked for the DEA. It was sponsored by Rep. Tom Marino (R-Pa.). Sen. Orrin G. Hatch (R-Utah) negotiated a final version of the bill in the Senate, and it was signed by Obama in April 2016.”
    Our Attorney General has focused on weed – weed that is easy to grow at home !!! And has yet to kill anyone through overdose.
    The STATE organs have all the tricks of modern law enforcement at their disposal – license plate readers, facial recognition, banking records, Millions paid to “Confidential Informants, even a small air force complete with ground operations facilitie.
    And yet no major shipment of opiates has been stopped.
    The judge has already been bought and paid for.
    Oh there will be a settlement – a hasty one while the deplorables continue to die.

    1. JBird

      Just because 20 day’s deaths by opioids now is the same as the 3,000 deaths of 9/11, and the number of deaths by suicides, murders, and accidents with guns is ⅔?

      Which are used the justifications for multiple wars and countless civil rights violations for the former and police homicides, civil rights violations, used to fund corrupt political campaigns, get votes, and increase social discord and political power of the political parties by the latter that anyone should suspect something stinks?

      The more cynical I become, the more I find I am not cynical enough.

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