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The Opioid Trials: A Fight for Control

AN ELEVENTH-HOUR SETTLEMENT

Just hours before the bellwether trial in the Opioid Multi-District Litigation was to begin, a settlement was reached between four major drug companies and distributors, and the two Ohio county defendants. On Monday, October 21, 2019, McKesson Corp., Cardinal Health, Inc., AmerisourceBergen, and Teva Pharmaceuticals Industries, Ltd. agreed to pay a combined total of $260 million to Cuyahoga and Summit Counties in Ohio. An additional defendant, Henry Schein Medical, agreed to donate $1 million to an educational fund with Summit County and to pay $250,000 of Summit County’s expenses. Schein Medical was dismissed as a defendant from all litigation, and the case filed by Summit and Cuyahoga against the other four defendants was dismissed with prejudice. Walgreens was also named as a defendant but it was not part of the settlement. Johnson & Johnson previously settled with Summit and Cuyahoga counties for $20.4 million.

While some hailed the settlement, others were frustrated that the bellwether trial would not go forward. The case was selected as the first trial in the MDL, and while bellwether cases are often meant to encourage settlement—as this one obviously did—they are also meant to allow parties to test legal theories, discover facts, predict opponents’ arguments, and fine-tune trial strategy. None of that will be taking place now with this set of parties.

STATE v. LOCAL CONTROL

A vocal critic of the Cuyahoga/Summit lawsuit and settlement is the Attorney General of Ohio, Dave Yost. Yost lost his bid in the Sixth Circuit to stop the lawsuit from proceeding, and has maintained that the State of Ohio alone has the jurisdiction to pursue defendant drug companies and distributors on behalf of the people of Ohio. According to Yost, a federal judge (Judge Dan Polster who presides over the MDL), should not be able to usurp Ohio’s power to prosecute claims of harm to its citizenry. In this view, the MDL is an attempt by city and county governments and their lawyers to grab settlement money that belongs to the state. State Attorneys General claim that the MDL lawsuits brought by cities and counties are preventing global settlement—a national settlement negotiated by the state AGs—because defendants worry about their liability to these local defendants.

A perfect illustration of the tension between the state attorneys general and the MDL lawyers is the letter sent by Yost just two days after the above settlement was reached. On October 23, 2019, Yost sent a letter to Endo International and Allergan that the $15 million they had agreed to pay to settle the Cuyahoga and Summit County lawsuits (Endo agreed to pay $10 million and Allergan $1 million, plus $1 million in medications) would not affect the state lawsuit that he is prosecuting: “No settlement with any political subdivision(s) relieves (the company) of any liability to the State for any claim that Ohio has brought.” This dual liability between the MDL and the states is exactly why many companies will not agree to settle unless a global settlement is reached which takes care of all of their liability.

IT’S ABOUT CONTROL

On the same day that Attorney General Yost sent his letter, Ohio Governor Mike DeWine convened a meeting on how best to use the settlement funds announced just 48 hours prior. State Attorney General Yost, lawyers for cities and counties involved in the MDL, and Michael Moore, the former Attorney General for Mississippi and a leading attorney in the opioid litigation, attended.

Moore’s connection is key. As Attorney General for Mississippi, he led the Big Tobacco litigation in the 1990s, and brokered the biggest global settlement ever achieved. But many states put the settlement money they received into projects and issues that had nothing to do with addressing the problems associated with tobacco use. The state attorneys general involved in the opioid litigation today do not want to see a similar diversion of funds repeated; they want the money from a global settlement to go to drug treatment and rehabilitation; first responder costs and compensation; criminal justice costs; and education and prevention.

THE NEXT STEP

Negotiations for a global, multibillion dollar settlement are ongoing, with the state attorneys general in North Carolina, Pennsylvania, and Tennessee taking the lead. In the meantime, the next case in the MDL that is set for trial will presumably move forward. Stay tuned for another potential eleventh hour settlement.

CONTACT YOUR ATTORNEY

If you or someone you know is suffering a loss due to substance use disorder (SUD), contact Dave Thomas with The Thomas Law Firm for a free consultation regarding your legal rights. The loss could be an inability to maintain employment and therefore the loss of financial stability; a loss of physical and emotional well-being; or even the loss of the life of a loved one.

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