Names of hundreds of addicts to be disclosed in opioid litigation

By Dan Fisher | Nov 1, 2018

Polster  

CLEVELAND (Legal Newsline) - Plaintiff lawyers representing Ohio cities and counties say they’ll comply with a judge’s order to identify hundreds of people who became addicted to prescription opioids by a deadline tomorrow, peevishly accusing manufacturer defendants of doubting they’ll come through with the information. 

In a 14-page response today, the plaintiffs complained about an Oct. 29 filing by the manufacturers asking U.S. District Judge Dan Aaron Polster to compel them to comply with a discovery order Polster issued last week. In that order, Polster required the plaintiffs either to provide specific prescriptions they believe were medically unnecessary or to forgo such evidence entirely at bellwether trials scheduled to begin next September.

The defendant companies say they need to see the evidence the plaintiffs will use to support claims that hundreds of thousands of people became addicted to opioids and illegal drugs because of improper marketing and distribution practices. The plaintiffs – the cities of Cleveland and Akron and their surrounding counties -- say they will rely mostly upon “aggregate proof,” or the testimony of experts who will say doctors prescribed too many opioids because manufacturers promoted them with fraudulent safety claims and distributors and pharmacists failed to report suspicious orders to the government.

In their filing today, the plaintiffs said they do plan to provide “full responses” to Interrogatories 7 and 10 contained in the discovery order, however. Those interrogatories require the plaintiffs to identify at least 300 people “who allegedly became addicted to any substance” or were “otherwise harmed as a result of any prescription” in their area. 

In addition to identifying those people, the plaintiffs must disclose the type of harm the person suffered, the specific opioids they took or were prescribed, when the prescriptions were written, the underlying condition the physician used to justify the prescription and “the allegedly false, misleading or deceptive statement or omission” that allegedly induced the healthcare provider to write the prescription.

This last condition will require the plaintiffs to lay out the core of their case, which is that but for illegal and fraudulent practices by the defendants, patients wouldn’t have become addicted to opioids. While judges have become more accommodating to theories of aggregate proof over the years, especially in lawsuits involving widely distributed products and drugs, a bedrock requirement in most tort lawsuits is proving the defendant is responsible for specific acts that caused the plaintiff’s harm. 

The plaintiffs said they also plan to comply with Interrogatory 10, requiring them to identify at least 500 prescriptions that were “unauthorized, medically unnecessary, ineffective or harmful,” and the basis for that belief. The plaintiffs said they won’t comply with Interrogatory 6, which would have required them to identify 500 prescriptions that were issued specifically because of misrepresentations or other wrongdoing by the defendants. 

In their filing Monday, the manufacturers accused the plaintiffs of trying “to have it both ways” in their initial response to the discovery order, by saying they wouldn’t provide any specific prescriptions but holding open the possibility of identifying specific addicts and possibly evidence of how they came to be that way. The manufacturers also said the plaintiffs “rewrote the Court’s language” by saying they “do not intend” to claim any specific prescription was unauthorized or unnecessary, instead of Judge Polster’s more definitive “will not assert.”

In their response today, the plaintiffs accused the manufacturers of filing “a premature motion” “based on a misreading and misunderstanding” of their submission. The manufacturers also speculate the plaintiffs won’t comply with Interrogatories 7 and 10 but have no reason to believe that, the plaintiffs said.

“They cannot seek an order commanding more complete answers until they have seen the answers, and should not waste this Court’s time with unfounded, anticipatory objections,” the plaintiffs said.

On Interrogatory 6, the plaintiffs said they still intend to rely entirely on aggregate proof and will stipulate that if necessary.

The manufacturers asked Polster to compel responses after the plaintiffs modified some of his language, leaving open the possibility of identifying specific people who became addicted to opioids without providing any evidence that they did so because of improper prescriptions that can be blamed on the defendants. In their response to Interrogatory 7, for example, the plaintiffs said they won’t provide any specific prescriptions but “will identify individuals sufficient to respond to the interrogatory.”

Judge Polster didn’t give the plaintiffs the option of identifying individuals and not their prescriptions, the manufacturers complained. In their response today, the plaintiffs said the “answers will contain more than bare identifications” and the plaintiffs “are well aware of the various types of information the interrogatories call for.” They did not state whether they will supply specific prescriptions, however. They have until tomorrow to decide.  

 

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Amerisource Bergen Purdue Pharma L.P U.S. District Court for the Northern District of Ohio

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