CLEVELAND (Legal Newsline) - The lawyers in charge of lawsuits against opioid manufacturers and distributors pleaded for a Walmart case against the government to be pulled into the court coordinating federal multidistrict litigation, saying the legal questions it raises have already been answered by judge overseeing the MDL.
In a strongly worded letter to the Judicial Panel on Multidistrict Litigation, Joe Rice and Paul Hanly, leaders of the Plaintiffs Executive Committee in the opioid MDL, called the Walmart suit in federal court in Texas “a blatant attempt at forum-shopping in the hopes of re-litigating certain legal issues that have already been resolved against it in the opioid MDL.”
Walmart sued the U.S. Justice Department late last month under the Declaratory Judgment Act, a federal law that allows companies to obtain a court ruling on contested legal issues that they can use to thwart pending civil and criminal cases against them. Walmart is seeking a court declaration that it had no duty under the Controlled Substances Act to override the judgment of its pharmacists on whether to fill opioid prescriptions. Thousands of mostly government plaintiffs, from states to rural counties, have sued Walmart and other major pharmacy chains, claiming their corporate parents violated the CSA by failing to heed “red flags” indicating prescription drugs were being diverted into the wrong hands, sparking the opioid crisis.
The private lawyers leading the opioid MDL have already obtained rulings in their favor from U.S. District Judge Dan Aaron Polster, who is running the MDL from his courtroom in Ohio. In their letter, Rice and Hanly say “no issue has been litigated more thoroughly …than the duties and obligations imposed by the CSA” on dispensers and distributors. While none of the federal opioid lawsuits have actually gone to trial, Judge Polster has ruled consistently in the plaintiffs’ favor in pretrial orders that often effectively establish the law that will apply for all the cases in an MDL.
“Clearly unhappy with his resolution of these issues, Walmart now seeks to re-litigate them before a different court in the apparent hopes of receiving a different result,” the plaintiff lawyers say in their letter dated Nov. 10.
The letter represents the most forceful response yet to Walmart’s declaratory judgment suit, indicating the lawyers see that suit as a potential threat. Earlier this month, the private attorneys representing Webb County, Texas, home to Laredo, asked the JPML to declare Walmart’s suit to be a “tag-along” that belongs in the MDL. The JPML clerk denied that request as “not appropriate.”
In their letter, Rice and Hanly cite “certain developments” that justify pulling the case out of the court of U.S. District Judge Sean D. Jordan in Texas. Those developments were largely rulings Judge Polster has made against Walmart, Walgreen, Rite-Aid and other pharmacy chains.
“Massive amounts of discovery have taken place and Judge Polster has considered and ruled on thousands of pages of pretrial briefing,” the plaintiff lawyers wrote. “He is incredibly knowledgeable about the factual and legal issues present in this litigation, and is very familiar with many of the documents and witnesses (both expert and fact) relevant to the parties’ contentions.”
“Walmart’s unhappiness with Judge Polster’s rulings is not a sufficient justification for avoiding transfer of its declaratory action,” they conclude. Lawyers for Walmart didn’t respond to a request for comment.
The MDL procedure was created by Congress in 1968 to address the growing volume of mass-tort lawsuits piling up in federal courts. Under the law, a panel assigns lawsuits with common questions of fact and law to a single federal judge to oversee pretrial procedure such as fact discovery and summary judgment motions. Once that is done, the cases theoretically are supposed to be returned to their original courts to be tried.
That rarely happens in practice, as the rulings by the MDL judge on key questions tends to decide whether defendants will negotiate a mass settlement or the cases will be dismissed. This has drawn criticism from some legal scholars including Brian Fitzpatrick of Vanderbilt Law School, who has said the process puts too much power in the hands of a single judge to decide questions of law that may differ according to the state or federal judicial district a case was filed in.
In the opioid MDL, Judge Polster rejected Walmart’s arguments that there is no federal statute specifying the “red flags” plaintiff lawyers say it failed to heed and the CSA doesn’t require corporate-level systems to identify and block prescriptions written by suspicious doctors, leaving that responsibility to individual pharmacists. Judge Polster called that argument “a tortured reading of the CSA,” that would be “antithetical to its very purpose.”