A landmark opioid trial is getting underway in Cleveland. For the first time, pharmacies better known for selling everyday items like toothpaste and diapers will be on trial, and there will be far-reaching implications for big-ticket policy questions far afield of the opioid crisis.
On one side will be Walgreens, CVS, and Walmart. On the other, two Ohio counties; whereas the 1990s tobacco litigation was handled at the state level, trial lawyers fanned out to sign up thousands of local governments on lucrative opioid litigation contracts, seemingly deciding that working with smaller, less-sophisticated governments would be an easier path.
The basic theory that will be trial-tested is whether pharmacies are legally responsible for creating a public nuisance by overlooking so-called “red flags” when filling customers’ prescriptions for FDA-approved opioids.
Cleveland is the home for major opioid litigation ever since the Judicial Panel on Multidistrict Litigation decided that federal opioids-related cases should flow through a so-called MDL into the courtroom of Judge Dan Polster.
To help wrangle things, Judge Polster assigned a lead team of attorneys for the plaintiffs that featured some of the nation’s most politically connected trial lawyers, most notably Joe Rice of Motley Rice, a firm that is such a major player (and donor) in Democratic politics that Rice has been a rumored ambassadorial candidate for President Biden.
After putting Rice and his colleagues in place, Judge Polster has been particularly aggressive in pushing defendants to avoid trial, telling pharmacies they risked bankruptcy absent settlement. As Yale Law’s Abbe Gluck put it, even by the standard of most MDLs, “Judge Polster has been unusually open about his desire to arrive at a settlement.”
And he has backed that up with aggressive procedural maneuvering. Perhaps most notably, Judge Polster imposed an unprecedented “negotiation class,” where local governments nationwide were to have their rights waived and be locked into whatever deal resulted from the lead lawyers’ settlement discussions, without knowing up front what the deal was going to be.
Judge Polster’s use of this unheard-of ploy (concocted just for this case) drew a swift repudiation from the Sixth Circuit that sits in review over Ohio’s federal trial courts, with one appellate judge explaining that “[a] new form of class action, wholly untethered from Rule 23, may not be employed by a court.” Indeed, the Sixth Circuit has spoken up several times to rebuke Judge Polster’s handling of this case.
Judge Polster’s maneuverings did generate a multi-billion-dollar manufacturers and distributors settlement this year, although pundits have noted the zero guaranteed money for victims even as the trial lawyers walk with billions. But the settlement crusade came up short as to pharmacies.
The trial’s direct implications are huge. Serious questions have been raised about the logic of pursuing pharmacies for opioids. Take, for example, the Wall Street Journal Editorial Board, which critiqued pharmacy lawsuits while noting that “Walmart and CVS didn’t push opioids on their customers[,] [n]or did they break the law when they distributed opioids to their pharmacies, which fill valid prescriptions written by state-licensed doctors and often approved by the state-run Medicaid or federal Medicare programs.” This trial will help define winners and losers in that high-profile debate, with billions at stake.
The trial will also help determine if state or local governments lead in future national litigation. Local governments—as compared to States—more often rely on trial lawyers and have a bad habit of getting less favorable terms; too many local-government opioid contracts include inflated fees and weak ethics protections, especially given that law firms like Motley Rice represent multiple different governments in these cases with potentially divergent interests. State governments have their own failings, but we can expect trial lawyer empowerment and worse outcomes for consumers and victims if local governments are the lodestar of future litigation.
Similarly, the trial outcome will help shape the legacy of Judge Polster’s bare-knuckle approach. Commentators have questioned Judge Polster’s handling of this case, with his unrelenting emphasis—some would say dictatorial commitment—to bullying defendants into settlement. They have asked whether a single judge should (by his own admission) be so plainly trying to solve the entire opioid crisis with maverick procedural moves and use of the courtroom gavel as a bludgeon. So far, Judge Polster has cowed defendants and gotten his way. But the trial could change the narrative and affect how judges handle future mega-cases.
Finally, this will be a meaningful test of the movement to use public nuisance to impose crushing liability on industries that sell legal—indeed licensed—products subject to extensive regulation. Public nuisance is being deployed by partisans in ideological cases far beyond opioids, and a win in Cleveland would give those efforts oxygen—if pharmacies are liable for selling FDA-approved opioids to customers with prescriptions from licensed doctors, activists will be salivating at the potential to go after car dealers, gun stores, or anyone else who commits the sin of selling licensed products to licensed buyers in a regulated industry that happens to be on the wrong side of a major ideological divide.
Make no mistake, the upcoming opioid title-card bout in Cleveland will speak to hot-button policy debates with ideological implications well beyond opioids. That—and the billions that might be at stake—makes this trial anything but ordinary and provides every reason to tune in.
