Drug Cos. Want Slow SF Opioid Case Timeline Amid COVID-19

Law360 (March 23, 2020, 8:04 PM EDT) -- Major drug manufacturers and distributors slammed San Francisco’s proposed schedule for opioid-crisis cases in California federal court Friday, saying the “behemoth” complaint requires a lengthier timeline and that the COVID-19 pandemic is straining all parties, including San Francisco itself as it provides “critical public services” during the pandemic.

In a response to the city and county of San Francisco’s proposed timeline for the cases, the defendant companies urged U.S. District Judge Charles R. Breyer to delay any decision for 30 days until the impact of the coronavirus pandemic become clearer, and if not, to approve a slower timeline resulting in a trial date scheduled for October 2021 rather than March 2021. 

The drug companies complained that the proposed timeline filed by San Francisco on March 13 only referred to the COVID-19 crisis in a “footnote,” and said the unprecedented impact it is having should give Judge Breyer pause before ordering any timeline in the next 30 days.

The pandemic “will for the foreseeable future impose substantial strain on the resources of both plaintiffs and defendants — the former as they work to provide critical public services in this time of crisis, the latter because they serve critical components of the pharmaceutical supply chain that is needed to support that effort, and both sides because of the unprecedented restrictions and demands currently imposed on both governments and businesses,” the drug companies said.

The drug companies’ response comes after the Judicial Panel on Multidistrict Litigation in February moved the opioid-crisis cases filed against a slew of drug manufacturers, distributors and pharmacies to California federal court. In its order, the JPML acknowledged potential "practical concerns" with the bellwether cases, but it ultimately accepted the remand recommendations of U.S. District Judge Dan Aaron Polster, who presides over a vast opioid MDL that's centralized in Ohio federal court.

Local governments, tribes, states and other entities have filed thousands of cases accusing pharmaceutical companies of wildly irresponsible painkiller sales that created a deadly addiction epidemic. The only case that has gone to trial was brought by Oklahoma and resulted in a $465 million judgment last year against J&J, which is appealing. San Francisco filed its complaint in December 2018. 

The MDL's first bellwether trial was narrowly averted by settlements last year. Judge Polster has scheduled a second trial for November that will pit two Ohio counties against some of the country's biggest pharmacy retailers.

Before addressing the COVID-19 issues, the drug companies’ Friday response argued the first amended complaint filed by San Francisco on March 13 will require substantial discovery, particularly because it is a “behemoth that has ballooned” by 125 pages from the original complaint.

Because San Francisco alleges the companies bear responsibility not just for the prescription opioid epidemic, but also the illegal opioid trade and non-opioid illicit drugs such as methamphetamine — which they say is an “entirely new allegation” — the cases will require extensive discovery into the “history, causes, extent, and current status of illegal opioid problems in San Francisco,” the drug companies said.

Discovery would be required with at least 40 municipal departments and third parties, the drug companies said, including Child and Family Services, medical examiners, public health, emergency services, the San Francisco District Attorney’s office and law enforcement.

“The needed discovery will entail extensive documentary and testimonial evidence from many sources,” the drug companies said. “And the time frame to be addressed is lengthy, both because plaintiffs’ allegations span decades and because San Francisco has faced problems with substance abuse for at least that long, if not longer.”

The drug companies also noted that since San Francisco’s March 13 filing, the city and surround counties have been under unprecedented “shelter-in-place” orders to help fight the spread of COVID-19. They said San Francisco’s proposed schedule hoped for a “short-lived” crisis.

“Significantly, many defendants are also at the center of this crisis response, which requires ongoing dependable access to the medical supplies and medicines that defendants manufacture, distribute, and dispense to patients and medical providers across the country,” the drug companies said. “Defendants’ employees are heavily engaged in these and other activities to mitigate the effects of this pandemic on the supply chain.”

The companies added, “Although defendants fully understood and accepted the court’s statements at the February conference about its intent to establish a schedule with a fixed trial date, they respectfully suggest that it would be prudent to defer that decision for 30 days to permit a more informed evaluation of whether the impacts of the COVID-19 crisis will indeed be ‘short lived’ — as all parties earnestly hope they may be — or instead are longer-lasting.”

Counsel for the parties did not immediately respond to requests for comment.

San Francisco is represented by Deputy City Attorneys Owen J. Clements, Sara J. Eisenberg and Jaime M. Huling Delaye.

The drug companies are represented by Sonya D. Winner, Nathan E. Shafroth and Isaac D. Chaput of Covington & Burling LLP, and counsel from Reed Smith LLP, Williams & Connelly, Swanson & McNamara LLP, Morgan Lewis & Bockius LLP, Arnold Porter Kaye Scholer LLP, O'Melveny & Myers LLP, Ropes & Gray LLP, Kirkland & Ellis LLP, Alston & Bird LLP, Foley & Lardner LLP, Gibson Dunn & Crutcher LLP and Bartlit Beck LP

The case is City and County of San Francisco et al v. Purdue Pharma L.P. et al, case number 3:18-cv-07591, in U.S. District Court for the Northern District of California.  

--Additional reporting by Jeff Overley. Editing by Emily Kokoll.

Correction: A previous version of this story listed Purdue Pharma as a co-defendant, although pending litigation against the company has been stayed by a bankruptcy judge. The error has been corrected. The story has also been updated with additional counsel information. 

For a reprint of this article, please contact reprints@law360.com.

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