Smaller groups in opioid case concerned their interests will be lose out

With the first test case over allegations that drug makers and distributors are responsible for the nationwide opioid epidemic approaching in May, some plaintiffs that are a part of the consolidated litigation in Ohio are concerned their interests are not being properly represented by the lead attorneys, according to legal observers.

San Mateo County, which has suffered "devastating social and economic consequences," according to a lawsuit filed in federal court Thursday, does not have much to worry about because they have a seat on the leadership table, but class action and Native American plaintiffs, among others, might be vulnerable because there is a limited pool of money.

"Given there's got to be some ceiling to how much they can pay out and that so much of it will end up going to states and cities, what's going to be left for class actions brought by individuals?" said Loyola School of Law professor Adam Zimmerman. "I'm thinking of people not a part of this litigation as being especially vulnerable."

Plaintiffs' attorney David A. Domina similarly expressed concern for the Native American tribes in Nebraska he is representing.

"If it's a contest for limited funds, we want to be sure tribes are treated separately and distinctly," he said.

Anne Marie Murphy of Cotchett, Pitre & McCarthy LLP will represent San Mateo County in the Ohio multidistrict litigation. Drug manufacturers, including Purdue Pharma LP, Johnson & Johnson and Teva Pharmaceutical Industries Ltd., heavily contributed to increased expenditures related to drug treatment, law enforcement and social services, according to the complaint.

The county is alleging public nuisance, unfair competition and fraudulent concealment, among other claims. County of San Mateo v. Prudue Pharma LP et al., 19-CV00949 (N.D. Cal., filed Feb. 21, 2019).

Murphy said she expects the lawsuit to be consolidated with the other opioid lawsuits in front of U.S. District Judge Dan Polster of the Northern District of Ohio. In re: National Prescription Opiate Litigation, 17-MD2804 (N.D. Ohio, filed Dec. 12, 2017).

Settlement discussions have been ongoing, according to Domina, who added an upcoming Oklahoma state court case against drug manufacturers in May before Superior Court Judge Thad Balkman will serve as a model for what damages might look like.

The outcome could provide leverage to the victor for settlement negotiations in the larger federal cases, according to University of Georgia School of Law Professor Elizabeth C. Burch, against drug manufacturers.

Orange County Superior Court Judge Kim Dunning will oversee allegations by several counties and cities, including Los Angeles and Oakland, against major pharmaceutical companies in a trial scheduled for June. County of Orange v. Purdue Pharma, 14-00725287 (Orange County Super. Ct., filed May 21, 2014).

But Zimmerman said several obstacles remain to reaching a settlement that would resolve all claims even if the outcomes are unfavorable to the defense in both the Oklahoma case, the Orange County case, and the first Ohio bellwether federal case scheduled for trial in October.

Among the challenges is overcoming duplicative claims for damages alleged by multiple parties. For example, money a state attorney general would collect if it settles with the defendants would overlap with claims by other entities and would most likely resolve all other claims, including those brought by cities and municipalities, according to Zimmerman.

A potential master settlement agreement would severely impact the class plaintiffs seeking individual recovery against opioid drugmakers and distributors because they would most likely be last in line for damages, he said.

"With this many interest groups, all of them are at risk of getting the short end of the stick, which is why a global settlement is so sticky and difficult," Zimmerman said. "Most people understand there is not enough money to cover all the damage that's been done."

Attorneys representing smaller interest groups in the litigation have also said they have a muted voice in the settlement conversations, according to legal observers.

"Polster appoints attorneys but not on the basis of adequate representation," said Burch. "Native American tribes have legitimate questions about being adequately represented and whether that translates to poor substantive outcomes is certainly a concern."

Polster eased some of those concerns when he created a separate track for Native American plaintiffs, according to Domina. But the attorney generals of states with low Native American populations "want to toss that number into the pool with no differentiation [from other plaintiffs]," he added.

The tribes' claims are distinct because their doctors are, for the most part, provided by Indian Health Services and there are also medical and cultural issues surrounding Native Americans that "warrant the cases being grouped together," Domina wrote in an amicus brief.