LITTLE ROCK, Ark. (Legal Newsline) – Even one of the firms leading the federal opioid litigation doesn’t seem to want its cases there.
That's according to the sentiment expressed in a recent motion to remand filed by two Arkansas counties represented by the firm Motley Rice.
State courts offer a better chance for trial dates as opposed to the mass consolidation of the federal multidistrict litigation in Cleveland, where about 2,500 lawsuits from around the country are. The MDL has yet to conduct a bellwether trial.
Pulaski and Jefferson counties sued Walmart earlier this year over the addiction crisis. The lawsuit says Walmart, which is headquartered in the state, was responsible for much of the opioid flow in those counties.
Walmart shipped nearly 250 million opioids to Arkansas stores and purchased nearly 250 million more than any other pharmacy in the state from 2006-14, the suit claims.
“These opioid defendants have regularly sought to remove state court actions to federal court so they could be transferred to and tangled up in the federal multi-district litigation case for opioid claims,” says a motion to remand filed Aug. 24.
“By doing so, Defendants hope that the cases will languish in a pile of thousands of cases.”
Former Arkansas Attorney General Dustin McDaniel has teamed with lawyers at Motley Rice to represent the counties. Name partner Joe Rice is on the MDL leadership team.
They claim the law is on their side to keep the case in state court and that Walmart’s motive in removing the case to federal court was to delay its resolution. The counties say Walmart’s reasons for removal fail for three reasons:
-The complaint raises no federal question and pleads only common law and state law claims;
-There is no substantial federal issue in those state law claims; and
-Allowing removal upsets the state-federal jurisdictional balance.
“Walmart wants to tie up the Counties’ lawsuit in the federal MDL and avoid timely consideration of their claims,” the motion says.
There have been several detours in the MDL, with issues sporadically bouncing up to the U.S. Court of Appeals for the Sixth Circuit. Currently, the appeals court is deciding on the proposed “negotiation class” idea.
It would turn the MDL and all other opioid litigation into a sort-of class action. When Judge Dan Polster approved it, he shut Motley Rice out of a leadership spot because it represents states (which have their cases in state courts) as well as MDL plaintiffs.
The MDL plaintiffs executive committee asked for 7% of any settlement but Polster rejected that, leaving lawyers to negotiate their own paydays.
Pharmacies including Walmart also asked the Sixth Circuit to take Polster off of the MDL because he allowed plaintiffs to amend their claims months after a deadline expired. Their request was turned away.
The judge has told defendants he “didn’t want this litigating track” and “a trial will accomplish zero.” It’s the second time opioid defendants have sought to have Judge Polster step down or be removed from the litigation. That previous effort last September failed.