As courts grapple with the bundle of litigation that has sprung up against the makers and distributors of opioid painkillers, the city of Chicago could yet secure its day in court, as an Ohio federal judge has ruled the city’s lawsuit against opioid makers should be sent back to federal court in Chicago for trial to help work toward a "global settlement."
On Nov. 19, U.S. District Judge Dan Polster, of the Northern District of Ohio, issued an order, asking a judicial panel to order the case, docketed as Chicago v Purdue Pharma, be remanded to the U.S. District Court for the Northern District of Illinois. The case was selected as one of three cases chosen for likely “bellwether” trials.
The Chicago case and two others from West Virginia, would serve essentially as test cases, each helping to determine the potential liability of three different groups of opioid-related defendants. The judge indicated the results of the bellwether trials could then be used to help craft a larger, overall settlement of thousands of opioid-related claims now pending before Polster.
U.S. District Judge Dan Aaron Polster
In Chicago’s case, the lawsuit would most specifically target the manufacturers of opioid painkillers, most notably, Purdue Pharma, the maker of the drug known as Oxycontin.
Other pharmaceutical companies targeted in Chicago’s lawsuit include Johnson & Johnson; Janssen Pharmaceuticals; Endo Pharmaceuticals; Allergan PLC; Teva Pharmaceuticals; and Cephalon, among others.
Judge Polster also designated two cases brought by the city of Huntington, W.V., and Cabell County, W.V., for potential trials in their respective local courts. Those cases would each deal with the potential liability of drug distributors and pharmacies.
Chicago has been in court against the opioid makers since 2014, when it first filed suit. In that action, which has been amended twice, including most recently in 2016, the city accused the pharmaceutical companies of committing consumer and insurance fraud, among other alleged misdeeds, in promoting the use of the prescription painkillers beyond their prior, more limited use in post-surgical and end-of-life care.
As in the blizzard of lawsuits that followed from governments of all sizes across the country, Chicago City Hall claimed the opioid makers’ actions created a public health crisis of addiction and overdose deaths, the costs of which have been borne by taxpayers.
The lawsuits specifically allege the drugmakers encouraged doctors to prescribe the companies’ opioid products for the treatment of chronic pain and downplayed the risk of addiction and other problems.
After surviving attempts by the pharmaceutical companies to dismiss, the city’s lawsuit was swooped up and consolidated in 2017 into the massive court action now pending before Judge Polster in Ohio.
In the years since, Polster has sought to move the mass action toward a universal settlement to end the litigation.
While some litigants have likened the mass action to a “black hole,” the city’s lawsuit could be granted a chance to proceed to trial, should the federal Judicial Panel on Multi-District Litigation sign off on Polster’s recommendation.
Judge Polster said the various parties involved in the opioid litigation agreed the city’s lawsuit represented a good candidate for the bellwether proceedings. The judge noted the city and the defendants had already engaged in “substantial discovery and motion practice” in Chicago federal court, before the case was transferred.
Judge Polster said the transfer of the three cases would begin the process of establishing a “hub-and-spoke model,” in which his court would serve as the hub and “locus for global settlement,” while the cases’ home courts would serve as the spokes in the wheel, allowing the process to move forward.
Polster said he expects to suggest remand for other cases in the future, as well.
Polster asked the JPML to expedite its review of his bellwether recommendations.
The city of Chicago is represented in the action by attorneys with the firm of Motley Rice LLC, of Washington, D.C., and attorneys Kenneth Wexler and Thomas Doyle, of the firm of Wexler Wallace LLP, of Chicago.