CLEVELAND (Legal Newsline) - The judge overseeing federal multidistrict opioid litigation said a proposed bellwether trial against Walmart, Walgreens and other pharmacy chains is going off the rails and he might suspend the whole process, sending thousands of cases back to the courts where they originated.
Expressing strong anger with lawyers for both the plaintiffs and defendants, U.S. District Judge Dan Polster said he couldn’t understand why the pharmacies don’t settle their cases.
“I’m getting frustrated with this whole pharmacy thing and maybe, candidly, it’s time to end the MDL with the pharmacies,” Judge Polster said during a remote hearing late last week.
The judge also criticized plaintiff lawyers for recently identifying another 1 million suspicious “red flag” prescriptions on top of the 1 million they already turned over to the defendants for an upcoming trial featuring two Ohio counties. The judge said if he accepted all 2 million scrips as evidence of wrongdoing that would represent half the opioid prescriptions filled at defendant pharmacies in the two Ohio counties from 2010 to 2019.
“Candidly, I thought, you know, a million out of four million, roughly 25 percent, you know, to convince the jury that …the defendants should have a system which would have identified 25 percent of the prescriptions given by doctors was really stretching it,” the judge said. “Now you’re saying they should have seen that half the prescriptions were suspect, I think that’s a huge reach, but, you know, if you want to do it, you want to do it.”
Plaintiff lawyers representing some 2,000 cities and counties nationwide claim pharmacies had an obligation under the Controlled Substances Act to block prescriptions that featured any of more than 40 suspicious characteristics, such as if they were written by a doctor more than 25 miles from the patient’s ZIP code or the patient had prescriptions from multiple doctors. The pharmacies argue they are legally required to fill legitimate prescriptions and the fault for excess opioid prescribing lies with the doctors.
Plaintiff lawyers turned over the first 1 million “red flag” prescriptions last June, then added 1 million more in April, saying they turned up new evidence showing how the pharmacies themselves judged prescriptions. The pharmacies argued the new evidence included industry discussions that included the National Association of Boards of Pharmacy, where a plaintiff expert, Carmen Catizone, worked at the time.
Judge Polster agreed with the defendants it would be unfair to force them to work up a defense against the 1 million new prescriptions in time for an October trial, saying “this is now a totally different case.”
“The case implicating 1 million prescriptions is not the same as a case implicating 2 million prescriptions, and there’s no way it’s fair for the plaintiffs to change their case at this late date,” he said. He gave the plaintiffs until Friday to decide whether to use the original 1 million prescriptions, the 840,000 scrips their experts identified using both methods, or delay the trial and use all 2 million.
The judge sided with the plaintiffs on a basic theory of the litigation, however. He has proposed requiring plaintiffs to select 200 prescriptions at random for each pharmacy, each year, for which the defendants would turn over all the documentation they had including handwritten notes their individual pharmacists may have made on the back of paper scrips. Plaintiff lawyers say they aren’t going to identify any specific prescriptions that shouldn’t have been issued, but only a pattern of failing to document red flags that created a “public nuisance” by allowing too many opioids to flow into the community.
Defense lawyers argued they should be able to also question the physicians who wrote the prescriptions to determine if they were medically justified, the requirement for filling prescriptions under federal law.
Judge Polster waved that aside, agreeing with the plaintiffs that there was no need for jurors to hear from the doctors.
“The issue is what system did you have and did you use it, and that’s all this random sample is going to show,” he said.
“But, your honor, that’s plaintiffs’ theory of the case,” said Eric Delinsky, who represents CVS. “It’s not ours.”
The judge directed most of his criticism at the defendants, primarily Walmart, for refusing to negotiate a multibillion-dollar settlement, which would yield billions of dollars in fees for the private lawyers representing municipal plaintiffs. Repeating a threat he made in March, the judge said he understood why Walmart wanted to fight “because everyone else will go bankrupt and they will be the only, only pharmacy in the country.”
“But again, Walmart has decided to go to war with the Department of Justice, and I think they should understand that if the Department of Justice decides to suspend your DEA license, your pharmacies are out of business,” he said.
If the pharmacies don’t settle, he concluded, “there’s really no reason to have an MDL.”
“My colleagues around the country can have all these cases and, you know, try them until either the plaintiffs drop or the pharmacies drop,” he said. “They don’t need me.”