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Opioid Settlement Talks Hit Headwinds

The Wall Street Journal, March 7, 2018

By: Sara Randazzo

A federal judge’s push for a quick resolution of hundreds of lawsuits filed against drugmakers over their alleged role in the opioid crisis hit a roadblock this week, with both sides opting to seek more information to help value a global settlement.

U.S. District Judge Dan Polster said in a Wednesday order the cases will now move forward on a “limited litigation track,” setting up the possibility for test-case trials in the coming year.

The move comes after Judge Polster aggressively pushed for a somewhat unconventional approach to resolving the suits: settlement discussions before the facts of the case had been fully aired in court.

Judge Polster said early on in the case that “we don’t need briefs and we don’t need trials.” He even invited parties to his court to join the talks who didn’t have cases in front of him, including attorneys general pursuing their own deceptive-marketing suits against the drugmakers in state courts.

Settlement talks will continue, but the parties will also move forward with document discovery, further briefing and the scheduling of bellwether trials, according to Wednesday’s order. Judge Polster said in the order the parties reported on some progress during a Tuesday settlement conference, “but also identified various barriers to a global resolution.”

More than 450 cities, states and counties have filed suits in the past year against drugmakers and distributors, claiming their aggressive marketing and distribution of opioid painkillers has caused widespread addiction and overdose deaths.

The defendants, including Purdue Pharma, Teva Pharmaceutical Industries and Endo International, have denied the allegations and said they are dedicated to being part of the resolution of the drug crisis. Purdue said in February it would stop promoting OxyContin and other opioids to doctors, though it would continue selling the drugs.

Distributors targeted by the suits, including AmerisourceBergen and McKesson Corp., have similarly disputed the legal claims but said they are committed to solutions to the crisis.

So far, 16 states, including Ohio, South Carolina and Kentucky, have individually sued drugmakers or distributors. A coalition of states representing most of the rest of the nation are jointly pursuing their own investigation but haven’t sued.

One hurdle stalling settlement discussions has been the production of data from the Drug Enforcement Administration on exactly where drugs flowed into communities. Plaintiffs’ lawyers say the data will help them pinpoint other companies that should potentially be sued.

The federal agency this week agreed to turn over the names of manufacturers and distributors that sold 95% of the opioids in each state from 2006 to 2014, including the aggregate amount of pills sold and market share of each company.

The cooperation from the DEA came soon after the Justice Department asked the court to give it 30 days to decide whether they would participate in the case. The Justice Department said in the March 1 filing that the federal government, like the other municipalities pursuing suits, has borne substantial costs related to the opioid epidemic. It cited an estimate of the total economic burden associated with opioid overdose, abuse and dependence at $78.5 billion for 2013 alone.

Judge Polster encouraged all sides to continue settlement talks with the help of court-appointed special masters. The parties are due back in court for a settlement conference May 10.