The nationwide opioid lawsuits are far from over.
After last month’s settlement with drug makers and distributors, lawyers for Cuyahoga and Summit counties are focusing on the next set of defendants: pharmacies.
At the start of this month, attorneys for the two counties asked the court permission to add new claims against pharmacies to their lawsuits. The claims accuse pharmacy chains of failing to look out for suspicious opioid prescriptions.
“The claim against them is, you’re on the ground, you’re also a DEA registrant, you could see the repeat customer coming in for the pills,” Jennifer Oliva, a professor at Seton Hall University School of Law, told ideastream. “You could see directly the particular doctor, medical practice was actually overprescribing these things.”
The proposed amended complaints name Walgreens, CVS, Walmart, Rite Aid, Giant Eagle and Discount Drug Mart.
The pharmacies have opposed this move by the plaintiffs. Defense attorneys argued the companies believed they were being sued only for their role disturbing pills to stores, not for dispensing to customers.
The dispute is awaiting a ruling from U.S. District Judge Dan Polster, who continues to oversee the cases brought by more than 2,500 local governments and other parties. At a Nov. 6 hearing, Polster told the parties that it isn’t feasible to prepare for more complex trials like Cuyahoga and Summit’s with numerous claims and defendant companies.
“This model isn’t sustainable,” he said, according to a court transcript. “If I want to use a biblical model, I’d have to be Methuselah and live a thousand years and do this one year at a time.”
Polster said he instead plans to schedule several more bellwether trials, focusing narrowly on a few defendants and a few claims.
“I want cases that juries can understand,” he said, “so that no one can say, well, we’re just going to ignore the result because this was such a mish-mash, no one could make sense of it.”
Polster would remand many of those cases to other federal courts around the country.
“He feels, and everyone sort of agrees with this, it’s impossible to have a trial with 25 defendants and 8 to 10 different claims,” Seton Hall's Jennifer Oliva said, “And in fact, the defendants themselves admitted that such a trial would take upwards of eight months.”
Meanwhile, it’s still unclear whether states, counties and drug companies can agree to a universal settlement that would lay to rest all of the lawsuits over the opioid crisis.
The Sixth U.S. Circuit Court of Appeals has said it will review a proposal to include all cities and counties in the country in a special class that could vote on potential settlements. State attorneys general have opposed the novel plan.
“It’s never been tried before, and it would have given them some pretty big leverage to settle with the defendants,” University of Connecticut law professor Alexandra Lahav said, “because they could promise the defendants that everyone was included.”
While several state attorneys general have proposed a $48 billion settlement in cash and drug products, Ohio and local governments haven’t signed on.
Carl Tobias, a professor University of Richmond School of Law, questioned whether the parties could reach such a nationwide deal.
“I think Judge Polster certainly would like to be able to consummate some kind of final settlement that would clarify everything and address the concerns of all the plaintiffs,” he said, “but I don’t know whether that’s really possible at this point.”
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