Does state’s opioid deal cut off others ‘at the knees’?

LOS ANGELES -- With so many active lawsuits alleging Purdue Pharma and other opioid manufacturers helped create an addiction epidemic in California and throughout the U.S., a judge said Thursday that a global settlement reached with only the state attorney general could cut county and city claims off "at the knees." Attempting to wade through opioid-related litigation brought by the state, counties and cities, Los Angeles County Superior Court Judge William F. Highberger asked Assistant Attorney General Michelle Burkart, and Kern County's counsel, Roman Silberfeld of Robins Kaplan LLP, questions about the attorney general's scope of authority in potential settlement discussions.

Using Johnson & Johnson -- an opioid manufacturer defendant already deeply engaged in settlement discussions -- as an example, Highberger asked whether a global settlement reached with the state could undercut county and city claims and settlement discussions.

"Mr. Silberfeld, it sounds like ... the only thing you can do is try to litigate to win because they have no desire to compromise with you because ... once they compromise with somebody else, to it, Ms. Burkart, they can just cut off your claims at the knees, essentially," Highberger said.

Filed in 2019, the attorney general's suit alleged Purdue and its owner, Richard Sackler, created a public nuisance, misleadingly introducing OxyContin into the market as a safe and effective treatment for chronic, non-cancer pain while trivializing the risk of misuse and addiction by deceptively marketing its prescription drugs and violating unfair competition laws. The defendants are limited to Purdue Pharma, its subsidiaries and the Sacklers, but Burkart said Thursday that her office is in settlement discussion with unnamed defendants, one of them likely being Johnson & Johnson. People v. Purdue Pharma LP et al., 19STCV19045 (L.A. Super. Ct., filed June 3, 2019).

Continuing the discussion, Highberger said:

"If they're willing to talk to the California attorney general and the attorneys general of several states trying to reach global settlement, by inference that means they're not interested in talking to representatives of the County of Orange, or the County of Santa Clara, or the city of El Monte or the County of Kern on the same topic, correct?"

Silberfeld's lawsuit, filed on behalf of Kern County and the city of El Monte, was consolidated with the state's suit for pretrial purposes in the Judicial Council Coordinated Proceedings Thursday.

"We do, meaning Kern County and the city of El Monte, believe we have the authority to bring these claims on behalf of the people," Silberfeld told Highberger.

Of the similar actions ongoing in a multidistrict litigation in Ohio, a federal lawsuit in Northern California, and the state lawsuits in Los Angeles and Orange County, the Orange County action is the most developed and is heading to trial April 19. As the first case in the state to go to trial, the Orange County matter in front of Judge Peter Wilson could have sweeping implications, not only on the suits in California but the ones throughout the country. People v. Purdue Pharma et al., 14-00725287 (Orange Super. Ct., filed May 21, 2014).

Also present during Thursday's conference, Johnson & Johnson's defense attorney Charles Lifland of O'Melveny & Myers LLP, said settlement discussions were only ongoing with attorneys general and not individual counties or cities who might have also brought claims on behalf of the people. However, like many settlements on the national level, the global settlement under discussion with the California attorney general's office requires the state's top prosecutor to allow counties and cities to sign off on it, Lifland said.

Highberger said while seeking the blessing from potentially all 58 counties and the cities in California seemed like a "worthy thing to do," it would be no small challenge.

He ended the status conference by scheduling another status conference for July.