CLEVELAND (Legal Newsline) - The federal judge who approved a nationwide class of plaintiffs to try to settle opioid litigation appears to have had a change of heart when it comes to a nationwide class of parents caring for children who were born addicted to narcotics.
The proposed definitions for Neonatal Abstinence Syndrom (NAS) claimants were too vague to fit the requirements of federal law, U.S. District Judge Dan Polster ruled in an order rejecting a nationwide class seeking money for medical monitoring and treatment of potentially millions of NAS children.
The judge’s Feb. 1 order stands in contrast with his 2019 order approving a novel “negotiation class” consisting of every city and county nationwide to try and spur the settlement of federal opioid litigation. The Sixth Circuit ultimately rejected the proposal, which was opposed by both opioid distributors and manufacturers and many state attorneys general who are pursuing their own global settlement of opioid claims.
The NAS plaintiffs had hoped to use Judge Polster’s reasoning behind the first nationwide class to pursue their own, but the judge said the NAS plaintiffs “are simply not analogous to the negotiation class.” Another problem was three of the four proposed class representatives couldn’t meet the class definitions proposed by their lawyers, the judge said.
“Plaintiffs have added and removed multiple representatives and have come up with only one representative who might meet the class definition,” the judge wrote.
The NAS plaintiffs proposed six classes, including two nationwide classes and two state classes each for Ohio and California. The lead plaintiffs were parents of opioid-addicted children in California and Ohio who blamed drug manufacturers and distributors for the condition of their infants.
The judge said the lawyers set out “inconsistent and imprecise” definitions for the classes. They were supposed to include the legal guardians of children who were born with neonatal abstinence syndrome and whose birth mothers had received a prescription for opioids before or during pregnancy.
The legal definition of a guardian differs from state to state, however, and one of the former proposed class representatives didn’t even have legal custody of her child. People who belonged to the class at the beginning of the litigation might not be guardians by the end, the judge noted.
“The Court’s concerns are especially acute here, where many of the guardians unfortunately suffer from opioid addiction, and so are at greater-than-average risk of potentially losing guardianship – leading to new guardians for their children.”
Courts have certified classes of guardians for some lawsuits, the judge said, but in this case the plaintiffs were seeking money for continuing medical monitoring. The “request implicates a shifting class membership for a period of many years, perhaps decades,” he wrote.
The definition of neonatal abstinence syndrome was even vaguer, the judge ruled, since medical professionals use a shifting set of criteria to identify infants who were exposed to opioids in utero. Without clear criteria, the judge said, the court would have to perform an individual examination of each child’s medical records to determine whether they fit the definition of NAS.
“Such a requirement would fit perfectly the definition of administrative infeasibility,” Judge Polster wrote.
The defendants said class members also should be required to prove that the mothers of NAS children actually received prescriptions for their products, as opposed to taking illegal opioids or drugs manufactured by bankrupt Purdue. The plaintiffs argued that wasn’t necessary since they accuse the companies of collectively conspiring to create an addiction crisis. The birth mother’s “history of drug usage (other than the prescribed opioid required by the definition) is irrelevant,” the they said.
While the plaintiffs argued the drug companies should be liable for any opioids prescribed to pregnant women, even a plaintiff medical expert agreed it is sometimes appropriate.
The lawyers for NAS claimants also argued the court needed to establish a class to insure they got some of the money from the settlement being negotiated by the Plaintiffs Executive Committee, which they said is ignoring them. The judge said those concerns “are not valid bases for certifying a litigation class.”
The NAS plaintiffs can pursue their claims in settlement negotiations through the MDL, the judge said, just like any other plaintiffs.