Push for Opioid Settlement Recalls VW Emissions Deal

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By Julie A. Steinberg

A judge’s push for a rapid and meaningful settlement of opioid suits against drug makers and distributors recalls the fast resolution of litigation against Volkswagen AG over emissions cheating that got polluting cars off the road, attorneys say.

Mass torts like these can take years, even decades, to resolve. But U.S. District Judge Dan A. Polster told attorneys he wants an accelerated solution that will address the opioid epidemic by getting drugs off the streets, analogous to what his counterpart achieved through settlement with the world’s biggest automaker in 2016.

Federal opioid suits were combined in December 2017 into a multidistrict proceeding and sent to Polster of the U.S. District Court for the Northern District of Ohio.

Manufacturer defendants include Oxycontin maker Purdue Pharma, LP and Johnson & Johnson unit Janssen Pharmaceuticals Inc., maker of Duragesic fentanyl skin patches.

“Judge Polster’s sense of urgency resonated with the entire plaintiffs’ leadership team,” Paul Geller, a member of the opioid MDL plaintiffs’ executive committee, told Bloomberg Law.

“Lawsuits sometimes get mired down and move at a snail’s pace. That was unacceptable in VW and it will be unacceptable here,” said Geller, head of consumer litigation for Robbins Geller Rudman & Dowd, LLP in Boca Raton, Fla.

Harm from one company’s gaming of auto emissions doesn’t compare with the human toll of opioid abuse. However, the suits over cheating by Volkswagen, and the opioid litigation, both could be seen as avenues for addressing issues of overriding public interest.

Opioids, including prescription medications, heroin and illegally made fentanyl, are blamed for more than 42,000 U.S. deaths in 2016 alone, according to the U.S. Centers for Disease Control and Prevention. Some 40 percent of those deaths are attributable to prescription medication, CDC said.

Emissions Scandal

VW admitted to equipping millions of diesel vehicles worldwide with defeat device software that could limit pollution during emission tests while exceeding legal limits on the road.

Federal suits were consolidated in December 2015. Judge Charles R. Breyer of the U.S. District Court for the Northern District of California the next October approved a $14.7 billion settlement between Volkswagen, consumers, and the federal government covering hundreds of thousands of cars with 2.0-liter diesel engines.

The VW litigation resulted in a settlement that removed certain cars with polluting engines from the nation’s roadways. Similarly, Polster wants to get to the root of the opioid crisis by curbing the availability of those drugs.

Although the alleged harms vastly differ, “Conceptually, they both needed immediate impact,” Joe Rice of Motley Rice in Mt. Pleasant, S.C., told Bloomberg Law. Rice is co-lead counsel for the opioid MDL plaintiffs and was a co-lead negotiator of the VW economic loss settlement.

Breyer “put the case on a fast track of litigation activity, heavy litigation activity, as he simultaneously put the parties in a negotiating room with a special master,” Rice said. “He used active litigation as a motivator to actual resolution.”

Hundreds of Opioid Suits

The opioid proceeding involves hundreds of suits by local and state governments as well as insurers and hospitals. They allege drug makers and distributors contributed to a public health crisis by minimizing risks of addiction and overdose, inducing doctors to overprescribe their products, or failing to report suspicious prescription orders for the powerful pain drugs.

The public and private entities seek to recover treatment costs, as well as social and criminal justice costs, associated with opioid abuse.

The Centers for Disease Control and Prevention estimates that the total “economic burden” of prescription opioid misuse in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement.

Work Quickly

At the first MDL conference Jan. 9, Polster directed attorneys to work quickly toward a settlement that will lower the number of pills being disseminated and make sure the drugs are appropriately prescribed. Because of the ongoing crisis, resolution must be more than “just moving money around,” he said.He also expressed concern that a traditional litigation path would take too long, telling the attorneys that “about 150 Americans are going to die today, just while we’re meeting.”Polster, though, told the parties it will be full steam ahead with a trial in 2019 on Ohio’s claims against opioid makers if there is no resolution this year.

Polster is also asking states’ attorneys general to participate in universal settlement talks. A coalition of 41 attorneys general has been investigating alleged opioid marketing and prescription abuses, and some state suits are pending in state courts rather than the MDL.

Drug companies, while denying liability, have acknowledged the need to confront the crisis.“We recognize that the opioid crisis is a significant and complex public health challenge, and we want to be part of the solution. We welcome the opportunity to sit down with the court, hear its ideas, and try to be as productive as possible,” Purdue Pharma said in a statement sent to Bloomberg Law.

J&J unit Janssen Pharmaceuticals Inc. said, “We continue to maintain that allegations made in lawsuits against our company are baseless and unsubstantiated. Our actions in the marketing and promotion of our opioid pain medicines were appropriate and responsible.“At the same time we recognize that opioid abuse and addiction are serious public health issues that must be addressed. Finding those solutions will require collaboration among many stakeholders across the country. We look forward to being a part of the ongoing dialogue and finding ways to address the crisis,” the company said.

A judge’s push toward settlement in an MDL is nothing new, but Polster’s concern here that a traditional litigation approach could delay the problem’s solution is noteworthy, said Adam Zimmerman, a professor at Loyola Law School in Los Angeles.

Overall, Polster’s approach as necessary problem-solver aligns with the urgency of opioid situation, Zimmerman said. It also shows a shift over time in the role of an MDL judge, he said.“Overall, the judge’s role is going away from someone who exclusively tries to manage the cases for trial, which is the MDL’s traditional role, and it’s instead kind of this increasingly centralizing and coordinating role,” said Zimmerman.

Mass Tort Differences

The size and scope of the opioid litigation distinguish it from previous pharmaceutical mass torts.A typical drug product liability MDL might include thousands of plaintiffs alleging a drug maker didn’t properly warn about a particular side effect. After a period of discovery, several test trials let the plaintiffs and defendants see how juries view the cases. These can inform settlement discussions.But what’s distinct about the opioid suits is “you’ve got multiple layers of injury, multiple different layers of conduct, and multiple different defendants, all in one MDL,” said Rice, co-lead counsel for the opioid litigation plaintiffs.Opioids also have a broader reach than other drugs.The prescription opioid epidemic touches all strata of society, “children and grandparents, rich and poor, high school dropouts and Ph.D’s,” plaintiffs’ attorney Geller said.

“And unlike many lawsuits that seek redress for past harm, this lawsuit not only demands accountability and restitution but must be the vehicle to put an end to this tragic and ongoing problem,” he said.

Past as Prologue?

The opioid litigation also presents more limited parallels to other mass torts, like the tobacco cases of the 1990s and suits by Vietnam veterans alleging harm from the defoliant Agent Orange, some say.

The tobacco litigation, which resulted in a $246 billion accord with states, has been cited as a model of a legal proceeding that sets up a fund targeted at a public health concern.But Rice, who was lead negotiator in the tobacco settlement, and other plaintiffs’ lawyers, said that’s where the similarity ends, because the opioid litigation is much more complex.

In the Agent Orange litigation, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York set a quick trial date and also appointed Kenneth Feinberg as special settlement master in suits by Vietnam veterans alleging harm from the defoliant, Zimmerman said.“It was that one-two punch of opening dialogue and pushing settlement while at the same time allowing the parties to understand what was going to come down the pike if they didn’t settle,” Zimmerman said.“In some ways, what we are looking at is the 2018 version of that combination of judicial power,” he said.

What Would Settlement Look Like?

It’s too soon to detail what an opioid settlement might look like. Compensation, certainly, but education must play a major role, attorneys said.“We are talking about doctors prescribing, and education of physicians and med students,” said Paul Pennock of Weitz & Luxenberg in New York. He represents nine Michigan cities and counties.

Law enforcement personnel and the public also need to be educated about the signs of addiction, Rice said.

Treatment, too, is crucial. People need access to rehabilitation facilities, and science to bolster how to break addiction patterns, said Jayne Conroy of Simmons Hanly Conroy LLC in New York, which represents plaintiffs in multiple cases in the MDL.

Meanwhile, Polster is aggressively pushing all sides to settle.

“I don’t think anyone in the country is interested in a whole lot of finger-pointing at this point, and I’m not either. People aren’t interested in depositions, and discovery, and trials,” he said at the January conference.

“So my objective is to do something meaningful to abate this crisis and to do it in 2018,” he said.

The case is In re Nat’l Prescription Opiate Litig. , N.D. Ohio, No. 17-2804 .

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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