A federal judge has placed on hold the city of Chicago’s lawsuit accusing the makers of prescription painkillers like Oxycontin and Percocet – so-called “opioids” – of falsely marketing their drugs to doctors. defrauding City Hall and other employee health plan administrators, while giving time for a panel of federal judges to decide if the action should be consolidated with other similar lawsuits, brought by cities and others, now pending in other jurisdictions.
In mid-November, U.S. District Judge Jorge L. Alonso granted a request from the defendant drug companies for a stay in proceedings on the city’s lawsuits, until the U.S. Judicial Panel on Multidistrict Litigation can decide what to do with the bevy of cases now pending against the painkiller drugmakers across the country.
Alonso’s ruling came over the objections of attorneys representing the city, who argued slapping a hold on the process at this point would only serve to set the case back, upend years of resolved court disputes and ongoing discovery and evidence accumulation and further delay the resolution of the case the city says is needed to enable city officials to more adequately address what they called the “opioid crisis” afflicting the city, which they said is fueling high rates of addiction and overdose deaths.
The city filed suit in 2014 against a number of drug manufacturers, alleging at that time the companies conspired to commit consumer and insurance fraud, and violated city ordinances and other laws and rules, in promoting the use of their painkiller pills.
After several defendants were dismissed from the action, five defendants have remained, including Purdue Pharma, which makes Oxycontin; Endo Pharmaceuticals, which makes Percocet; Cephalon; Actavis; and Janssen Pharmaceuticals.
The city specifically has alleged the companies encouraged doctors to prescribe the companies’ opioid products for the treatment of chronic pain and downplayed the risks of addiction and other problems.
The city also asserted the companies collaborated with “front” groups and “key opinion leaders to advance their alleged deception.
In the years since the case was filed, the case has continued past several attempts by the defendants to dismiss it, with the city amending the case on multiple occasions.
However, as the city brought its action and in the years since, a host of other cities, benefits managers and others have stepped into courtrooms across the country, similarly suing the drug makers for the marketing of the pills, which they blame for the surge nationally in both cities and rural communities, alike, of opioid addiction and overdose deaths.
In Chicago, for instance, the city said in its most recent court filing that the city suffered 581 deaths from opioid overdose in 2016, up from 426 in 2015, leading the city to outfit its fire engines and ambulances with an anti-overdose medication.
In September, however, as the number of lawsuits mounted, a lawyer in West Virginia representing nearly four dozen cities and other government agencies suing opioid drugmakers petitioned the JPML to consolidate all of the various actions pending across the country into one giant case, known as a multi-district litigation, or MDL. In that petition, attorney James Peterson, of Hill Peterson Carper Bee & Deitzler, said consolidating the cases could save the courts and participants time and uneven outcomes, as different judges could see the same facts, yet come to markedly different conclusions on questions of law, evidence and procedure.
Other lawyers involved in the action, including Jay Edelson, of Edelson P.C., of Chicago, have recently compared the cases to the actions brought against the nation’s tobacco companies, which resulted in settlements and judgments worth hundreds of billions of dollars; they have pushed for a similar result here, saying the public health crisis from opioids is as severe as the crisis caused by cigarette smoking.
The JPML was scheduled to hear arguments on that request at the end of November.
In response, Purdue Pharma, Endo and other drugmaker defendants asked Alonso to place the city of Chicago’s case on hold to allow the JPML to decide if their case would merely be swept up in with all of the other similar lawsuits.
The city countered that request by noting the parties have litigated the case for three years already, in marked contrast to many of the other, newer actions. City attorneys argued plaintiffs and defendants and the judges hearing the matter have already invested large number of hours in negotiations and arguments over discovery and other motions. The city noted discovery has already resulted in the exchange of millions of pages of documents, and staying the case not only would place that written discovery on hold, but potentially force all parties to start over.
And they said, as the matter lingers in court, the city continues to struggle with the “opioid crisis,” which they said is only worsening.
The judge, however, sided with the drugmakers, staying the case. Alonso also set aside another round of motions to dismiss from the drugmakers, saying the stay renders those dismissal motions moot.
In addition to its corporation counsel, the city is represented in the action by attorneys with the firms of Motley Rice LLC, of Washington, D.C.; Wexler Wallace LLP, of Chicago; Cohen Milstein Sellers & Toll, of Washington, D.C.;
Purdue Pharma is represented by the firm of Skadden, Arps, Slate, Meagher & Flom LLP, of New York and Chicago; Quinn Emanuel Urquhart & Sullivan LLP, of New York; and Wiggin and Dana LLP, of Stamford, Conn.
Endo is represented by the firm of Arnold & Porter LLP, of Washington, D.C. and Los Angeles.
Actavis and Cephalon are represented by the firm of Morgan, Lewis & Bockius LLP, of Chicago, Miami and Philadelphia; Foley & Lardner LLP, of Boston and Chicago, and Kirkland & Ellis LLP, of Chicago.
Janssen is represented by the firms of Covington & Burling LLP, of Los Angeles, O'Melveny & Myers LLP, of Los Angeles, and Sidley Austin LLP, of Chicago.