Judge mulls bid for city and county negotiating class in opioid lawsuit

As lawyers for drug companies decry a seven-week time line for the opioid bellwether trial in Ohio, a federal judge is considering certifying a novel negotiation class to help resolve the sprawling case.

U.S. District Judge Dan A. Polster took under submission the request from 51 jurisdictions, including the cities of Los Angeles and San Francisco, following a nearly two-hour hearing Tuesday in Cleveland. The motion also was lodged on behalf of all other jurisdictions involved in the multi-district litigation he is overseeing.

The request seeks to create a mechanism in which all the involved jurisdictions can participate in settlement discussions "that these defendants choose to conduct on a class-wide basis, and to vote to accept or reject any proposed resolution."

The class would be a voluntary, opt-out class and won't be used to litigate claims. Instead, it's to be "an identified, unified, and durable nationwide body of cities and counties that can credibly claim to represent the best interest of all its class members." It requires 75 percent of participating jurisdictions to approve a settlement.

"Although the proposed procedure is novel, the use of a coordinated litigation device to represent the common interests of cities and counties is not new," according to the motion, which was filed by proposed co-lead class counsel Jayne Conroy of Simmons Hanly Conroy LLC and Christopher A. Seeger of Seeger Weiss LLP, as well as plaintiffs' co-lead counsel Joseph F. Rice of Motley Rice LLC and plaintiffs' liaison counsel Peter H. Weinberger of Spangenberg Shibley & Liber LLP.

Elizabeth J. Cabraser of San Francisco-based Lieff Cabraser Heimann & Bernstein LLP also signed the motion for the plaintiffs' executive committee.

State attorneys general oppose the request and warn it could undermine their ability to settle their cases and allocate settlement money. Lawyers for opioid manufacturers, distributors and other defendants oppose it too, arguing a negotiation class "could prove to be an obstacle to settlement through other means, possibly impeding the progress of more productive discussions."

They said Rule 23 of the Federal Rules of Civil Procedure doesn't allow for the class.

"As defendants observed previously, plaintiffs' proposal is creative and could possibly be of interest to the United States Congress or the Federal Rules Advisory Committee," according to the opposition. "But under both the clear language of Rule 23 and the unambiguous interpretations of that language by the Supreme Court, the proposed class is not eligible for certification."

Several plaintiffs also objected, including six Ohio cities that said the proposal "will fashion a new and dangerous model for class actions." The cities argued the class would force jurisdictions to chose whether to participate before they knew details of proposed settlements.

"The vastly diverse and competing interests of the class members cannot be adequately represented by one class. Homogeneous subclasses with independent counsel and representatives must be established," according to Cleveland attorney James L. Ferraro's opposition.

Meanwhile, defense lawyers on Monday filed a motion for additional trial time, saying the planned seven-week trial "is not enough time for a fair presentation of the evidence."

"Plaintiffs also have acknowledged several times that this case is not manageable in its current form and repeatedly and expressly committed to streamline the case," according to the motion. "Yet they have not done so, instead refusing to narrow the scope of their claims, or the number of their claims beyond stating that their common law fraud claim has been 'subsumed' into other counts."

The attorneys called the case "unusually complex and challenging" and emphasized that a bench trial in Oklahoma involved a single claim against one set of defendants but "took the entire time period currently allotted to try the claims of two plaintiffs against many defendants, illustrating the unworkable nature of the current trial schedule."

"Defendants cannot be forced to sacrifice key elements of their defenses in order to accommodate an unreasonable seven-week time frame, particularly when facing claims that plaintiffs' experts have valued in the billions of dollars," according to the motion.

Polster had not scheduled a hearing on the motion as of Wednesday evening. In Re: National Prescription Opiate Litigation, 17MD-02804 (N.D. Ohio, filed Dec. 8, 2017).