Opioid judge rejects dismissal plea, orders first lawsuits to trial

By Daniel Fisher | Dec 20, 2018

Polster  

CLEVELAND (Legal Newsline) - Opioid manufacturers and distributors lost their long-shot bid to end more than 1,000 lawsuits against them as the federal judge overseeing multidistrict litigation rejected their motions to dismiss and ordered the first cases to trial next year.

In a sometimes impassioned 39-page order, U.S. District Judge Dan Aaron Polster said racketeering, nuisance and negligence claims against the companies that make and distribute addictive opioids should be allowed to proceed. 

Judge Polster has never hidden his view that the defendants should settle this litigation by offering to pay potentially billions of dollars to the plaintiffs, virtually all of whom are represented by private lawyers who will get a substantial cut of whatever their clients win.

“There has never been a case with facts analogous to those alleged by Plaintiffs here,” the judge wrote. The defendant companies are accused of a “wanton disregard for public health” by violating their “legal duty to try to prevent the diversion of prescription opioids.”

The defendant companies argued they shouldn’t be sued for manufacturing and distributing Schedule II narcotics under a comprehensive system of oversight by the Drug Enforcement Administration, which determines the number of pills that can be manufactured each years and tracks them from the factory floor to the retail dispensary. 

The plaintiffs argue the manufacturers used deceptive marketing to stimulate demand beyond legitimate medical purposes and ignored signs of suspiciously large shipments going to “pill mills” where prescriptions were subsequently sold into the illegal black market.

“With the privilege of lawfully manufacturing and distributing Schedule II narcotics — and thus enjoying the profits therefrom — comes the obligation to monitor, report, and prevent downstream diversion of those drugs,” the judge wrote.

“It is accurate to describe the opioid epidemic as a man-made plague, twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated. As this Court has previously stated, it is hard to find anyone in Ohio who does not have a family member, a friend, a parent of a friend, or a child of a friend who has not been affected.”

He acknowledged the allegations “do not fit neatly into the legal theories chosen by the Plaintiffs,” but said “they fit nevertheless.” 

“Whether Plaintiffs can prove any of these allegations remains to be seen, but this court holds that they will have that opportunity,” he wrote.

The judge’s ruling, while no surprise, means that bellwether lawsuits by the cities of Akron and Cleveland and their surrounding counties will proceed as scheduled next fall. The manufacturers and distributors complain they are being forced to defend themselves against allegations of making “suspicious” shipments without being told which shipments were improper.

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