Law360 (May 28, 2021, 9:18 PM EDT) -- With the coronavirus crisis cooling down, a pressure cooker of opioid litigation is heating up with long-awaited trials across the country.
The outburst of trials — two are happening now and several others are set for the coming weeks and months — is especially intense because of a confluence of circumstances. One factor is COVID-19, which delayed some trials that were ready to go in 2020, moving them closer to trials that were never expected to begin before 2021.
Another factor is simply that many opioid cases now date back almost four years, and in some instances almost seven years, so briefing and discovery have largely run their course. In addition, efforts to strike global settlements in more than 3,000 opioid lawsuits have lagged, leaving trials as one of the few other options.
The new timeline could prove problematic. In a court filing this month, a dozen drug companies facing a massive opioid trial in New York argued that the two opioid trials underway in California and West Virginia "have already created conflicts" for witnesses and have exacerbated "significant challenges to proceeding with a multimonth, complex jury trial at this time."
Here, Law360 maps out the hottest cases and spotlights must-know details about trials that are underway or imminent.
State and local governments have filed thousands of cases alleging improper sales of narcotic painkillers by drugmakers, distributors and pharmacies. Here's a look at some past, present and future trials that are especially prominent.
California State Court
Six weeks after its kickoff, a California trial involving one of the nation's oldest opioid suits is at a crucial juncture. Localities are essentially done calling witnesses, and drugmakers are vowing to seek judgments as a matter of law shortly after Memorial Day.
It's not currently clear whether Orange County Judge Peter J. Wilson, who is presiding over the videoconferenced bench trial, is seriously open to siding with the drugmakers and abruptly ending the case. But he could signal which way he's leaning at oral arguments that may precede the calling of defense witnesses.
Regardless of when and how the trial ends, it will likely carry crucial lessons for opioid litigants elsewhere. That's partly because it's only the second trial against drugmakers in the wave of opioid litigation. It also pits communities with 15 million residents against four drug companies, dwarfing the first opioid trial, which saw Oklahoma take on Johnson & Johnson in 2019.
Takeaways for future strategies in opioid litigation may derive from some of the trial's early highlights, including vivid accounts of public heroin use and parks strewn with hypodermic needles, a bold defense strategy to downplay the opioid epidemic's severity, and extensive efforts by drugmakers to pass the buck to OxyContin seller Purdue Pharma LP.
If the drugmakers don't win judgments as a matter of law, the trial — which has been "moving slowly," according to Judge Wilson — is expected to continue well into the summer.
The case is People of the State of California v. Purdue Pharma LP et al., case number 2014-00725287, in the Superior Court of the State of California, County of Orange.
West Virginia Federal Court
The in-person trial that started May 3 in West Virginia federal court also carries outsize importance. It's the first bellwether trial in multidistrict opioid litigation, as well as the first opioid trial against the nation's "Big Three" drug distributors.
On one side are Cabell County and its seat, Huntington. The county has seen the highest rates of fatal opioid overdoses in West Virginia, which itself has had the highest rates of fatal opioid overdoses in the U.S.
On the other side are AmerisourceBergen Corp., Cardinal Health Inc. and McKesson Corp. They've proposed a $21 billion global settlement that the MDL's top attorneys have endorsed, but the offer remains unfinalized, and in any event, the West Virginia communities don't support it.
Cabell County wants $2.6 billion for opioid crisis remediation, which works out to roughly $28,000 for each of the county's 92,000 residents. By contrast, $21 billion works out to about $65 for each of the nation's 330 million inhabitants.
During opening statements, a Reed Smith LLP lawyer for AmerisourceBergen called $2.6 billion an "absurd price tag." Should the county win anything close to that amount, it could be viewed as an anomalous victory based on dire straits. But it might also give some plaintiffs pause about settling.
The trial's first few weeks have featured testimony from a wide range of witnesses, including drug company executives, fire and police professionals, academics, regulators and doctors. The trial could continue until August.
The cases are City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, in the U.S. District Court for the Southern District of West Virginia.
New York State Court
After pandemic-induced delays, opening statements will commence June 22 in sweeping litigation brought by New York Attorney General Letitia James and Nassau and Suffolk counties on Long Island.
Like other opioid cases, the New York litigation accuses drug companies of reckless business practices involving opioid sales. But unlike any other opioid trial so far, it's expected to have a jury, hundreds of witnesses and a dozen defendant companies with operations across the opioid supply chain.
Those companies include drugmakers, distributors and pharmacies. In a recent letter, they called on New York Supreme Court Justice Jerry Garguilo — the presiding judge — to force the plaintiffs to "dramatically narrow" their case, warning that the trial otherwise "might easily take six months or more to complete."
In recognition of the immensity, the trial will take place a half-mile from Justice Garguilo's courthouse in a larger venue at Touro College's Jacob D. Fuchsberg Law Center. The defendant companies have suggested that venue doesn't solve the capacity crunch, writing recently that "the Touro moot court auditorium does not appear well-designed at all for a protracted jury trial involving 15 parties."
In an added element of intrigue, it was still unclear on Friday whether New York's attorney general will be allowed to participate. Special masters hadn't yet ruled on a discovery dispute, as well as a related motion to disjoin, which could lead to a separate trial for the state.
A spokesperson for James' office told Law360 on Friday that the state expects to be at the trial.
The cases are In re: Opioid Litigation, case number 400000/2017; County of Suffolk v. Purdue Pharma LP et al., case number 400001/2017; County of Nassau v. Purdue Pharma LP et al., case number 400008/2017; and State of New York v. Purdue Pharma LP et al., case number 400016/2018, all in the Supreme Court of the State of New York, County of Suffolk.
Tennessee State Court
In another first, Endo International PLC is facing a $2.4 billion trial on July 26 in a Tennessee state court case blaming it for neonatal abstinence syndrome. The disorder appears in infants whose mothers use opioids while pregnant, and while similar "opioid baby" lawsuits have been widely litigated, none have gone to trial.
Endo's case recently produced an extraordinary judgment that the company had "engaged in obfuscation and delay" during discovery and was therefore liable by default, leaving only the question of damages for trial.
Endo is trying to stave off the trial, arguing to a state appeals court that "the effect of the default order is to deny defendants their day in court on the hotly contested question of their liability, with potentially exorbitant financial consequences."
The case was originally brought by three district attorneys. After the Tennessee Supreme Court found they lacked standing, the trial court allowed local governments to be substituted, according to Endo, which is accused of violating the state's Drug Dealer Liability Act.
The case is Staubus et al. v. Purdue Pharma LP et al., case number C-41916, in the Circuit Court for Sullivan County.
The appeal is Sullivan County et al. v. Purdue Pharma LP et al., case number E2021-00479-COA-R3-CV, in the Court of Appeals of Tennessee, Eastern Section at Knoxville.
Ohio Federal Court
Barely four months remain until the Oct. 4 start of the multidistrict litigation's second bellwether trial, which has all the trappings of a blockbuster.
Most importantly, it would be the first MDL trial against pharmacies, including divisions of industry titans Walmart Inc., Walgreen Co., CVS Health Corp. and Rite Aid Corp., as well as regional chain Giant Eagle Inc.
The pharmacies have arguably flown under the radar during opioid litigation, with most of the attention focused on allegations that drugmakers deceptively downplayed addiction risks and distributors inundated rural towns with narcotic painkillers. That low profile would change if the trial moves forward as planned in Ohio federal court before U.S. District Judge Dan Aaron Polster, who has been shepherding the MDL since its inception in 2017.
In a Wednesday court filing, the pharmacies indicated that they aren't exactly eager to enter the litigation limelight. Their filing suggested another trial delay may be necessary because the Ohio county plaintiffs are pursuing a "radical expansion of the number of prescriptions" that will be wielded as evidence.
Unless millions of prescriptions are blocked from trial, then the pharmacies must get more time to conduct analysis and "the rest of the court's deadlines, including the trial date, should be postponed accordingly," the pharmacies wrote.
The cases are County of Lake, Ohio v. Purdue Pharma LP et al., case number 1:18-op-45032, and County of Trumbull, Ohio v. Purdue Pharma LP et al., case number 1:18-op-45079, in the U.S. District Court for the Northern District of Ohio.
--Additional reporting by Cara Salvatore. Editing by Alanna Weissman and Nicole Bleier.
For more news and analysis, visit Law360's guide to the latest developments in opioid litigation and trials.
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