Opioid cases charge forward in California

As Purdue Pharma LP seeks bankruptcy as part of a multibillion-dollar settlement, two opioid lawsuits in California have emerged as fertile ground for more unprecedented litigation outside the sprawling federal case scheduled for its first trial next month in Ohio.

Plaintiffs' attorneys at Robins Kaplan LLP aggressively cornered the litigation market in California earlier this year, moving to coordinate nine new lawsuits with the groundbreaking 2014 state action in Orange County Superior Court.

The ensuing battle spotlighted a power struggle among California jurisdictions vying for a piece of the nation's latest and perhaps largest public health court epic with state Attorney General Xavier Becerra trying to take over the litigation and attorneys in the Orange County case decrying Becerra's "surprise" interference.

And while Purdue commands widespread attention because of its key role in the development of the opioid-based prescription drug Oxycontin, "there are lot of defendants who participated in creating the opioid crisis," and none has announced settlement plans, said Robins Kaplan partner Michael A. Geibelson.

"Obtaining remedies for cities and counties from the defendants in the opioid litigation is far away from over," Geibelson said.

Paul J. Hanly Jr. of Simmons Hanly Conroy, co-lead of the multi-district litigation plaintiffs' executive committee, emphasized the Purdue Pharma settlement, opposed by many states, still is tentative.

"Whether we can get all those loose ends, which are quite important, is uncertain," Hanly said Monday.

Still, Purdue Pharma's bankruptcy filing takes the opioid giant out of play in every case, including the longstanding action in Orange County.

"No matter how upset any particular plaintiff might be about Purdue filing for bankruptcy or no matter how upset a state court judge might be about losing the ability to control the case against Purdue, there are no exceptions," Hanly said.

Other major defendants include Johnson & Johnson, which in August was hit with a $572 million verdict in a state bench trial in Oklahoma, but no settlements beyond Purdue's have been announced.

"All I can say is they've indicated they're interested in settling. but I'm not able to provide any details because there's a gag order," Hanly said.

The fight to control the potentially lucrative litigation has included unusual opposing opinions from two parties both purporting to represent the state. Since 2014, Orange and Santa Clara counties have represented the state through a collective public nuisance and false advertising action that seeks civil remedies and a statewide injunction, with Los Angeles County and the City of Oakland joining last year. People v. Purdue Pharma, et al. (O.C. Super. Ct., filed May 21, 2014).

But last month, the state attorney general took a stance opposite the plaintiff counties by supporting Robins Kaplan's coordination bid and calling to take over the 5-year-old Orange County case. Becerra, in an Aug. 19 statement signed by Deputy Attorney General Michelle M. Burkart, touted the attorney general's responsibility "to ensure that the laws of the state are uniformly and adequately enforced, and the supervision of all district attorneys and other law enforcement officers."

"This responsibility extends not just to the actions being considered here, but also to those matters brought by local officials on behalf of the people pending in the opioids MDL," according to the statement.

In response, counsel for the plaintiff counties said the attorney general's position is "to the detriment of the people's ability to obtain sorely needed relief for California consumers." They said the attorney general's previous inaction in the case waives his ability to take a contrary position.

"Counsel for the people in the 2014 action have diligently litigated their cases for years, partially in reliance on the attorney general's representations about the scope of their authority, spending thousands of hours of public attorney time on this matter of critical importance to their jurisdictions," according to an Aug. 22 memorandum by Greta S. Hansen of the Santa Clara County Counsel's office.

Hanly said the anomaly exemplifies "the nature of this litigation."

"It's quite complex, and sometimes things don't appear to make total sense," Hanly said.

Orange County Superior Court Judge William D. Claster declined to coordinate the Orange County in an order issued Sept. 6 because the case "has proceeded considerably further than the other actions" and includes differing claims. Prescription Opioid Cases, JCCP 5029 (O.C. Super. Ct., filed May 9, 2019).

Claster did, however, coordinate the other actions, which include two Robins Kaplan lawsuits on behalf of Kern County and the City of El Monte as well as the action filed by the attorney general's office in July in Los Angeles County Superior Court. People v. Purdue Pharma, L.P, et al., 19STCV19045 (L.A. Super. Ct., filed June 3, 2019).

The seven remaining Robins Kaplan cases have been transferred to the MDL in Ohio, but the Kern and El Monte cases include only state claims. Claster said the proof needed for Kern and El Monte's individualized damages is irrelevant to the broader Orange County claims for equitable relief and civil penalties and would consume much of the case if combined. Claster also noted Purdue Pharma and associates are the only defendants in the attorney general's LA case.

"The overlapping question of Purdue's acts is significant, but it does not predominate over the issues surrounding the numerous other defendants' acts in the OC action," Claster wrote.

While Kern and El Monte include other defendants, the alleged principal bad actor is Purdue, Claster said. The attorney general also has reserved the right to add more defendants, so Claster said not only would coordination be more convenient, "the efficient use of judicial resources would be encouraged, and inconsistent rulings could be avoided."

Claster declined to rule on the attorney general's authority to take charge of the pending claims, saying it's "a question the court need not consider in order to determine whether coordination is warranted."

"Should the attorney general wish to assert control over Purdue-related claims, or should the various government entities wish to contest this assertion of control, they remain free to do so in the proper venues," Claster wrote.

Geibelson, who's on the case with Robins Kaplan's Lucas A. Messenger, Roman M. Silberfeld and Bernice Conn, said they're awaiting the assignment of an LA County Superior Court judge. Once that occurs and a case management conference is held, "there will be a better and clearer path forward," he said.

Hanly said the April 2020 trial date in the Orange County case is crucial to a settlement. Purdue Pharma's tentative deal through the bankruptcy is to be a global settlement that covers all cases outside the MDL as well, he said.

Based in New York City, Hanly has had a front row seat to the evolution of opioid litigation over the last several years, starting with some of the first cases by him and plaintiffs' litigators at Motley Rice LLC.

"Everyone sort of laughed at us at that time, and then we started to get some traction. Then the communities, I think, woke up and said, 'I can't be out here not pursing these companies if the county just across the line is pursuing,'" Hanly said.