A federal judge with an audacious plan to settle hundreds of lawsuits filed by local governments against the drug industry over the destruction wrought by prescription opioid painkillers has altered his course.
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Cleveland-based Judge Dan Polster issued an order Wednesday scheduling three Ohio trials for 2019 — a shift from his earlier plan to try to work out settlements without also preparing for trials.
In his order, the judge says the parties have made "good progress" and notes that lawyers in the case were asking for a litigation track in addition to settlement talks. The hope is that holding some trials can help resolve some of the thorniest common issues in the cases.
The nation's opioid crisis killed 42,000 Americans in 2016 with the death toll rising even as patients are being prescribed fewer opioid painkillers. The crisis is complicated. Many people becoming addicted to prescription opioids before switching to heroin or deadlier synthetic drugs such as fentanyl; some start with illicit drugs.
Polster wants to forge a deal on business practices and funding to reverse the crisis, which has hit hard across the country but has particularly ravaged communities in Appalachia. The first trials will be in lawsuits from Cleveland and the Ohio counties of Cuyahoga and Summit.
Getting there could be even more complicated than the landmark $206 billion settlement in 1998 between four companies and attorneys general for 46 states and territories. In the federal case, nearly 500 local government entities are also suing. Defendants include drugmakers, distribution companies and companies that manage pharmacy benefits for most Americans.
Paul Hanly, a co-lead counsel for plaintiffs in the case, says setting up a trial schedule is important largely because it means the sides can start exchanging more information and the judge's rulings on pretrial motions can help set the direction of the case.
He said that even though the first trials aren't on the calendar for nearly a year, "it's not a ridiculous proposition" that a settlement could be reached this year.
A spokesman for Purdue Pharma, the maker of OxyContin, said the company would not comment on the step toward a trial. The company and others in the industry have been pushing to have lawsuits blaming them for the crisis dismissed.
Cuyahoga County, where Cleveland is located, is happy to have been selected for one of the first trials, said County Executive Armond Budish.
"The opioid emergency has hit Cuyahoga County and northeast Ohio hard — as hard as any part of the country," he said. The county said it will work with the judge, Cleveland and Summit County going forward.
A spokeswoman for Summit County, which includes Akron, says the county is ready for trial. "We were disappointed that the defendants were reluctant to engage in settlement discussions, but we now stand ready to litigate our case," said Greta Johnson.
The settlement talks involve lawyers for a group of about 40 states that are conducting a joint investigation but have not yet sued and other state governments that have sued but in state rather than federal courts.
While cigarettes had been known for decades to cause cancer, prescription opioids are approved by federal regulators and prescribed by doctors.
Any opioid settlement would likely include changes to practices in the drug industry as well as money to fund treatment and to cover some of the government costs associated with the crisis. How to divide up that money could be contentious, too, potentially setting up battles about how much should go to treatment programs and law enforcement efforts and how much should be used to cover costs of the crisis taxpayers have already incurred, from buying a drug that reverses overdoses to the cost of extra ambulance runs and funding child welfare systems being deluged with children of parents with substance use disorders.
Polster has allowed the three major drug distribution firms — AmerisourceBergen Drug Company, Cardinal Health, Inc. and McKesson Corporation — to share sales information with one another to work on the settlement.
Also, the federal government has begun sharing with the other parties data about opioid shipments. Also this month, the Justice Department asked to help with the settlement talks.
Mulvihill reported from Cherry Hill, New Jersey.