Mdl Immunity: Lessons from the National Prescription Opiate Litigation

By Michalski, Roger | American University Law Review, January 1, 2019 | Go to article overview

Mdl Immunity: Lessons from the National Prescription Opiate Litigation


Michalski, Roger, American University Law Review


INTRODUCTION

The opioid epidemic claimed over 40,000 lives last year.1 Over 2 million individuals suffer from opioid induced impairment and dependence.2 countless other lives are affected and many families and communities suffer the effects of rampant opioid abuse.3 In the past, many courts conceptualized opioid abuse as the individuals' responsibility.4 More recently, a broad coalition of legislators, attorneys, academics, commentators, and doctors have argued that drug manufacturers might share a significant portion of the blame for the opioid epidemic because they intentionally or recklessly encouraged over-prescriptions, enshrouded the true risks of addiction, and targeted vulnerable populations.5 In hundreds of lawsuits filed across the nation, numerous cities, counties, Native-American tribes, states, labor-unions, hospitals, individuals, and insurance companies are currently invoking these novel legal arguments against opioid manufacturers and distributors.6 All of the federal lawsuits concerning the opioid epidemic have been transferred away from their various courts of origin for coordinated pretrial proceedings.7 Currently, over 1900 cases with over 2400 plaintiffs are in front of a single judge in the Northern District of Ohio.8 If past experience serves, virtually none of these cases will ever return to where the plaintiffs originally filed these lawsuits.9

This stunning feat of procedural prowess is possible under 28 USC § 1407 ("1407" or "MDL statute" or "federal multidistrict litigation"). Once a rarely used procedural oddity, cases transferred under the multidistrict litigation statute now account for roughly a third of the federal docket.10 Use of section 1407 is controversial and often fiercely contested because it radically re-balances the litigation opportunities and vulnerabilities of plaintiffs and defendants.11 Instead of defending in district courts all over the country, a defendant only has to defend in one proceeding. instead of facing many plaintiffs with many strategies and approaches to discovery and motion practice, the defendant faces a steering committee of plaintiff attorneys selected by the judge who, often, is focused on protecting judicial resources and encourages broad settlements.12

Multidistrict litigation faces numerous critics,15 but the opioid epidemic litigation highlights a problem that has largely escaped notice: 1407 only selects cases where "common questions of fact" are present and where transfer serves the vague goals of furthering "the convenience of parties and witnesses" and "promote [s] the just and efficient conduct" of transferred cases.14 The MDL statute does not test for broader interests. Such broader interests might be at play in many instances. Typically, the belief is that other interests are subordinate to the larger goal of efficient adjudication and the parsimonious use of judicial resources.

However, in the context of the opioid epidemic (and litigation like it) there are special and strong additional considerations at play. First, the opioid epidemic is of greater national concern than many other MDL cases.15 Second, the plaintiffs in this MDL (mostly counties and cities) are representing sections of the public at large and are trying to protect their government police powers.16 Third, the plaintiffs here are unusually heterogeneous, ranging in population, wealth, litigation resources and experience, governing powers and responsibilities, and varying exposure to the opioid epidemic (early/late, low/high, legally prescribed/illegally obtained). This extreme variation sets the opioid epidemic plaintiffs apart from those in many other MDL cases where similarly situated individual consumers allege more comparable harm.17 Fourth, many plaintiffs here stress the importance of public disclosure as a litigation goal to educate the public they represent.18 Fifth, the legal theories invoked by the current plaintiffs in the opioid cases are novel and complex19 and implicate a difficult debate about the nature and causes of addiction,20 the role of intervening causality,21 preemption,22 the interplay of criminal and civil sanctions,23 measuring harm,24 local powers in the midst of a paralyzed national crisis, and the intractable costs of a drugged society. …

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