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Combining opioid lawsuits

Hundreds of attorneys met before a federal litigation board in St. Louis last week to discuss ways of expediting the cause and speed of justice by reducing the about 150 lawsuits filed nationwide accusing several major drug manufacturers of fueling the opioid epidemic that is threatening to destroy area communities.

A request, filed with the U.S. Judicial Panel on Multidistrict Litigation, in September, asks that those suits filed in multiple states be grouped together for better cohesion and efficiency as the cases move forward. A decision is expected in two weeks.

The lawsuits state that wholesale distributors breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the states over the past several years, a duty the lawsuits claim companies have under the Controlled Substances Act of 1970. Among those joining in the class action suit are virtually every city and county government in the Tri-State region. They include, but are not limited to, Ashland and Boyd County, Scioto, Gallia and Lawrence counties and the city of Portsmouth in Ohio, and McDowell, Kanawha, Boone, Wyoming, Logan, Lincoln, Cabell and Wayne counties and the city of Huntington in West Virginia.

Huntington attorney Paul T. Farrell Jr., whose coalition of law firms represents about half of the 154 cases filed thus far, said Thursday’s hearing did not seem to focus so much on whether the cases would be grouped, but instead where the cases would be heard.

“It’s anyone’s guess on where they will land,” he said. “But the panel is looking for a judge with some experience with handling MDLs (Multijurisdiction Lawsuits), and there was not a whole lot of time debating on judge or jurisdiction. Most of them want Columbus, Ohio, or Charleston.”

Grouping would allow one judge to make rulings on pretrial motions and other issues that arise, Farrell said. “No one is losing their case,” he said. “There are just several decisions that have to be made, and that will be conducted by one person, if the panel approves the order. It saves time and inconsistent rulings.”

Farrell also noted the issue of who had filed the suits — whose plaintiffs range from hospitals, government entities, labor unions, third-party payees and individual citizens. The panel could choose to separate those suits from each other due to different claims.

The “Big Three” distributors — McKesson Corp., Cardinal Health and AmerisourceBergen Drug Corp. — and five manufacturers, like Purdue Pharma and Johnson & Johnson, who are named in dozens of the lawsuits — argued the move would be ideal, but other pharmaceutical distribution businesses — including Walgreens, Kroger, Walmart, CVS and Rite Aid — who are named in just a handful of lawsuits — oppose the consolidation.

Smaller pharmacy distributors named in local lawsuits oppose the centralization of dozens of cases they are not named in. The move would be unfair and dramatically increase burdens and costs associated with the move, several claimed.

The filings started after a 2016 Charleston Gazette-Mail investigation revealed that between 2007 and 2012, the “Big Three” shipped 423 million pain pills to West Virginia, which has about 1.8 million citizens, before the number of pills started to decrease. The Cabell County Commission declared the distribution of pain medications in the county a public nuisance under West Virginia State Code and hired the law firm of Greene, Ketchum, Farrell, Bailey & Tweel to pursue first-of-its-kind legal action against those in the chain of distribution. It created a domino effect of lawsuits being filed nationwide.

After the hearing in St. Louis, Farrell said, “We got their attention today in one of the most important courtrooms in the country right now. They know that there is going to be a day of reckoning and it’s going to be magic or tragic — one or the other.”

It started with aggressive moves to promote OxyContin and other highly addictive “pain” medicine and supplying pain clinics with massive doses of those drugs. We think the pharmaceutical industry did play a role in creating this region’s opioid epidemic. We will allow a jury or juries to decide just how large that role is and if there is any liability, if at all. However, before any trial can being the many existing lawsuits must be combined into a more manageable number.

Some litigants may not like having their suit combined with a much larger action, but that is the best way to assure that the important issues in the suits do not take years before they are decided in a court of law. Most local governments involved in the combined suit likely will play only a minimum role in it, but it is important that they have a seat at the rather large table.

The Independent of Ashland