Seemingly frustrated with the apparent lack of progress in settlement negotiations, Cleveland U.S. District Judge Dan Polster ordered all parties to saddle up and prepare for trial in the ongoing Multi-District Litigation national opioid lawsuit in Ohio.
The order is a significant departure from Judge Polster’s earlier stance. In January 2018, he told lawyers for both sides that he did not want a lot of legal “finger pointing” or obscure motions that address “interesting legal questions.” However, this latest order instructs attorneys to put the sprawling class-action lawsuit on a “litigation track” no later than March 2018. Co-lead counsel Joe Rice said that the parties made some progress in earlier talks. But negotiations had stalled over questions like damages for past conduct and some possible defenses.
Attorney Paul J. Napoli applauded the development.
“Not many cases that I can think of in my 20-year career have settled without the threat of trial,” he remarked. “And, particularly with so much information out there, and so many different parties, we need [more] information to frame an appropriate settlement,” he added.
Mr. Napoli has repeatedly asked the judge to aggressively move forward and set bellwether trials for November. But the defendants have resisted his efforts and seek to delay the proceedings as much as possible.
What is a MDL?
Like many other professionals, lawyers are sometimes guilty of using legal industry buzzwords, such as “MDL”. which they assume everyone else understands.
Congress created the Multidistrict Litigation panel in 1968. It’s designed to hear mass tort cases, such as water poisoning and defective medical devices. Such cases are usually too different from one another to qualify for class-action status. The chemical poisoning victims live in different communities, the victims have different doctors, and so on.
However, it would be very inefficient to handle these large cases on an individual basis. Furthermore, many of these matters are highly technical. Some judges may lack the expertise to deal with all the issues.
The MDL panel evaluates such cases and decides if it would be a good idea to consolidate them for pretrial purposes. One judge supervises all pretrial motions and discovery. Typically, there are a few bellwether (test) trials as well. If the individual matters do not settle, they usually go back to their home jurisdictions for trial.
MDL is usually a good thing for plaintiffs. All victims can pool their resources in one place. Also, the defendants often set up very large settlement funds that cover hundreds or thousands of claims. Finally, the process often triggers a domino effect. Once one case settles on favorable terms, or lawyers obtain a favorable verdict, other cases often follow.
The Plaintiffs’ Position
Almost everyone agrees that opioid painkillers were a fairly good idea that helped many people, but then things went terribly wrong. Even pharmaceutical manufacturers, like Purdue Pharma, have adopted this view. Predictably, however, these defendants deny that they have anything to do with the current crisis. More on that below.
In situations like these, attorneys often turn to public nuisance rules. This doctrine usually applies to environmental tort cases, such as a chemical plant that poisons the nearby water supply. But public nuisance works well in other situations too. The elements vary among jurisdictions, but they are normally something like:
- The defendant created a harmful condition or did nothing to stop such a development,
- Many victims were affected at the same time,
- The condition would annoy or disturb a reasonable person,
- The social utility is outweighed by the seriousness of the harm,
- Plaintiffs did not consent to the activity,
- The plaintiffs suffered a unique harm, and
- Defendant’s conduct was a substantial factor in the harm.
Clearly, these cases are very complex and have lots of moving parts. A lack of evidence on any one point can bring the whole claim crashing down. So, it’s very important to partner with a highly experienced attorney who is also extremely aggressive. Otherwise, a public nuisance claim has little hope of success.
The national opioid lawsuit often contain other allegations as well, such as negligence and deceptive marketing.
Where Do the Defendants Stand?
The party without the burden of proof, which is a defendant in a civil case, almost always tries to delay the proceedings as much as possible. Over time, memories fade and physical evidence disappears. These things make it harder for a victim/plaintiff to establish liability.
There’s another reason as well. Insurance companies know that the victim/plaintiff in a negligence suit is experiencing financial duress. The medical bills pile up as the victim is out of work. So, the insurance company hopes that it can convince the victim to agree to a low-ball settlement.
A Napoli Shkolnik attorney steps in here. A letter of protection ensures that the victim receives top medical care for no upfront cost. Furthermore, an attorney fights for a fair financial settlement.
Delay is not unique to the opioid case, but a preemption defense isn’t very widely used. Essentially, the opioid defendants argue that since the Food and Drug Administration approved these painkillers, any subsequent acts to limit them are invalid under the Constitution’s Supremacy Clause. However, the FDA had nothing to do with the way these drugs were used or marketed, and that is the fundamental basis of this national opioid lawsuit.
Standing (the right to sue) is also an issue in many public nuisance actions. Victim/plaintiffs must establish that they suffered a unique harm that’s directly related to the defendant’s misconduct. The longer the defendant delays, and the more the defendant plays hide-the-ball during discovery, the harder it is to obtain this evidence.
Substantial compensation is available to mass tort victims, if they have an attorney to fight for it. For a free consultation with an experienced personal injury lawyer in New York, contact Napoli Shkolnik PLLC. We do not charge upfront legal fees in these cases.