CLEVELAND (Legal Newsline) - National pharmacy chains facing a round of bellwether trials the judge overseeing federal opioid litigation hopes will convince them to negotiate a multibillion-dollar settlement complained they are still named in hundreds of lawsuits by municipalities where they have zero market share.
When the judge told plaintiffs and defendants to select representative cases for trial, the pharmacies submitted a lawsuit by Big Stone County, Minn., because it named the four main pharmacy chains – CVS, Rite Aid, Walgreens and Walmart – even though none of them sold opioids in the county.
The plaintiffs executive committee called the selection of the case “puzzling” but the pharmacies disagreed.
“In reality there was nothing even slightly puzzling about Pharmacy Defendants’ selecting a case that was representative of hundreds of cases just like it that are pending in the MDL,” the defendants wrote in an April 5 filing before U.S. District Judge Dan Aaron Polster, who is overseeing federal multidistrict litigation against the opioid industry.
Plaintiff lawyers immediately dismissed Big Stone County’s claims against the four, but the pharmacy defendants said Judge Polster should require them to dismiss claims in some 1,000 other lawsuits by cities and counties in which the lead defendants don’t have any market share. They listed 500 such cases for Rite Aid, 300 for Walgreens and 200 for Walmart.
The filing comes after the pharmacy defendants challenged and lost Judge Polster’s order to tee up five bellwether cases for trial, all featuring only the big national chains. Those companies argued, unsuccessfully, that the judge was neglecting smaller pharmacies that may have filled far more questionable prescriptions. The big chains accused the judge of improperly threatening them with financial ruin unless they negotiated a multibillion-dollar settlement with plaintiff lawyers, a charge he denied.
Judge Polster ordered plaintiffs and defendants each to come up with candidates for bellwether trials, which the judge said are needed to see how juries assess the novel claims asserted in these cases, which are that the companies created a public nuisance by failing to identify and block improper opioid prescriptions.
In this latest filing, the pharmacies said the judge “should not permit the (plaintiffs executive committee) to game the bellwether selection process” by refusing to include other defendants who possibly bear more responsibility for the opioid crisis. They asked the judge to enforce a prior case management order requiring plaintiff lawyers to remove defendants from cases where they had no market share.