Recently, Ohio has been the focus of national attention surrounding the opioid crisis. Trial begins October 21 in the combined cases of Cuyahoga County v. Purdue Pharma L.P. and County of Summit, Ohio, et al. v Purdue Pharma L.P., et al.
The two cases will serve as a bellwether for the thousands of cases government entities around the country have filed against opioid manufacturers and distributors, which have now been combined into multi-district litigation (MDL) in the U.S. District Court for the Northern District of Ohio in Cleveland.
Though the case is just heading to trial, attorneys at Plevin & Gallucci have been fighting this battle for more than two years as one of the law firms representing Cuyahoga County in the litigation.
What is a Bellwether Case?
A bellwether trial is a trial of one claim or a small group of claims selected from a much larger pool of substantially similar claims. This lead “test case” is typically selected based on representativeness of the pool as a whole, with some consideration given to the ability of the attorneys pursuing the claim to skillfully address the issues. In this case, the Cleveland MDL includes cases filed by more than 2,000 local governmental units around the country. But each has similar claims and similar damages.
A bellwether trial provides the court and the parties with important information about what they can expect as additional cases move forward. Plaintiffs may adjust strategy to focus on the most successful claims, and both parties often use the information gleaned during a bellwether trial to make decisions about whether to settle or advance to trial and what type of settlement to offer.
What is the Opioid Lawsuit all About?
Cuyahoga County and other local governments around the country allege that certain pharmaceutical manufacturers and distributors used misleading marketing to encourage the use of addictive opiates, knowingly triggering dependencies that yielded massive profits for the companies.
Between 2007 and 2017, annual drug overdose deaths in Cuyahoga County more than tripled, from 226 to 727. While there has been an increase in overdose deaths associated with several different drugs, fentanyl fatal overdoses have exploded. Annual Cuyahoga County overdose deaths associated with fentanyl remained in the single or low double digits until 2013. Between 2013 and 2017, that number skyrocketed from 37 to 492.
Cuyahoga County alone says it spent $463 million dealing with opioid, heroin, and fentanyl-related drug treatment, child services, and criminal justice issues between 2006-2018.
Of course, the opiate problem is not limited to Cuyahoga County. There has been a nationwide increase of opiate addiction, associated addictions, and fatal overdoses. However, Ohio has been hit particularly hard. Statewide, there was a 413% increase in drug overdose deaths from 1999 to 2013, and those numbers continued to climb. Nationwide, there were more than 47,000 opioid deaths in 2017.
Obstacles to Trial Clearing
Ohio Attorney General Dave Yost made a last-minute bid to stop the Cuyahoga and Summit County cases from moving forward. Yost claimed that the state had sole authority to bring this type of claim, and the case interfered with the state’s ability to litigate claims on behalf of all Ohio residents.
On October 10, the U.S. Court of Appeals for the Sixth Circuit denied the state’s request for Writ of Mandamus ordering the district court to either dismiss or postpone the bellwether case, allowing the county litigation to move forward on schedule.
Settlements in Advance of Trial
As the trial date approaches, most of the pharmaceutical company defendants have entered into tentative settlements of the claims. Most of the settlements are offered to resolve claims in this specific case only, including:
- Endo Pharmaceuticals has agreed to pay $10 million in total to the two counties and provide an additional $1 million in free medications;
- Mallinckrodt Pharmaceuticals tentatively agreed to pay $24 million to the two counties and provide $6 million in drugs, including addiction treatment medications;
- Allergan has agreed to pay $5 million to settle the claims;
- Johnson & Johnson, the most recent drug company to enter into a tentative settlement, agreed to a total payout of $20.4 million, divided among the counties, plaintiffs’ attorney fees, and charitable contributions to opioid-related programs in the two counties.
None of the drug manufacturers has admitted wrongdoing.
Purdue Pharma has also reached a tentative settlement. But unlike the other pharmaceutical manufacturers who have agreed to settle the Cuyahoga and Summit County claims, Purdue is seeking to resolve claims nationwide.
On September 15, the company announced that its owners had agreed to contribute 100% of the company’s value to addressing the opioid crisis–a reported total of more than $10 billion. The Sackler family, which owns Purdue Pharma, agreed to contribute an additional $3 billion. To implement the settlement, the company would enter Chapter 11 bankruptcy.
Twenty-four states and hundreds of local governments had tentatively agreed to the settlement. But in the past few days, the state of Arizona has reversed its position.
Remaining defendants include Teva Pharmaceuticals and several drug distributors, including McKesson Corp and Cardinal Health Inc.
Be sure to check back with Plevin & Gallucci frequently for updates as this case unfolds.
On October 21st, a settlement of $260 million was agreed to just hours before last week’s selected jury was scheduled to hear opening arguments. Drug distributors Cardinal Health, McKesson, and AmerisourceBergen will pay a total combined $215 million, and Teva will contribute $20 million cash, and $25 million worth of the generic drug used to treat opioid addiction Suboxone.
A word from Frank Gallucci:
“After nearly two years of litigation, there is reason for hope today. For years our community’s families and taxpayers have been forced to shoulder the burden of the opioid epidemic. We’ve lost our friends, our loved ones, our neighbors. We’ve put millions of dollars into emergency response, addiction resources, and treatment programs. We’ve treated this public health crisis as just that — a crisis. But we know now that our legal fight has been worth it. Because of this resolution, Cuyahoga County will be able to take the initial steps necessary to make the investments that are necessary to fight the deadly flames of the opioid epidemic.
While this is a good start to addressing the problem, we know that this is a prolonged battle that will take even more resources. We continue to keep our focus on the remaining defendants in order to ensure that those who created this manmade crisis are ultimately held accountable.”