LITTLE ROCK, Ark. (Legal Lewsline) – The judge overseeing what plaintiffs lawyers call a “pile” of opioid lawsuits should determine if a recent one filed by two Arkansas counties will be sent back to a state court, Walmart is arguing.
The company recently removed the lawsuit of Pulaski and Jefferson counties to Arkansas federal court, the first step on getting the case sent to the multidistrict litigation in Cleveland handling more than 2,000 cases.
When private attorneys hired by the counties moved to remand the case back to state court, arguing that failing to do so would result in it “languish(ing) in a pile.”
But the MDL’s judge, Dan Polster, should decide that remand motion, Walmart says. It says it is “imminent” that the case will be transferred to Polster’s pile.
“And as with the thousands of cases before this one, at one of its upcoming hearings the (Judicial Panel on Multidistrict Litigation) will ultimately order the case transferred to the Opiate MDL,” Walmart’s lawyers wrote.
“There… the judge presiding over the Opiate MDL will consider and resolve Plaintiffs’ motion to remand along with the scores of motions by other plaintiffs presenting substantially similar issues.”
The case is notable in that one of the county’s hired guns – the law firm Motley Rice – has a lawyer (name partner Joe Rice) on the opioid MDL leadership team but doesn’t want the case to go there.
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:
“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.”
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.