Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. It's been quite the week for lawsuits over opioids. First, talks over a potential $48 billion global settlement broke down on Friday. Then, there was the first jury trial over the opioid crisis that, well, didn't happen. Instead, AmerisourceBergen, Cardinal Health and McKesson, the three major distributors of opiate pharmaceuticals, and one manufacturer, Teva Pharmaceuticals, agreed to a $260 million settlement with two Ohio counties just hours before opening statements on Monday. Later that day, Pennsylvania's AG announced the $48 billion deal went through—this time, without all the cities and counties on board. I was in Cleveland on Monday and talked to some of the lawyers who were there. For this week's Critical Mass, I've got more on what's happening with the opioid cases. As always, please feel free to email me at [email protected], or follow me on Twitter: @abronstadlaw.

Mark Lanier of The Lanier Law Firm

 

What Jurors Were Going to Hear

I spoke with Mark Lanier (The Lanier Law Firm), who really wanted to talk about the opening statement he had planned for Monday's opioid trial. He told me he was on "four hours a night" of sleep for the past month. After a quick celebration of his 59th birthday on Sunday in Houston, he flew out to Cleveland, where he went over the 150 slides with his trial team at the Ritz Carlton.

"I was ready to go," Lanier told me.

He said the judge had cautioned that Lanier's planned opening of 2 hours and 15 minutes might bore the jurors. Emboldened to prove him wrong, Lanier assembled a presentation, complete with images of poppy flowers and Cleveland highway signs, to show how the road to opioid addiction dated back to 1823. He told me:

"I wanted the jury to understand the opioid epidemic shouldn't surprise anyone. This was nothing new."

He even had props: a first edition of The Wonderful Wizard of Oz from 1900 and an ancient Sumerian opioid jug.

Late Sunday night, the defendants filed a motion in limine to bar plaintiffs' lawyers from making "inflammatory and prejudicial statements during opening statements to the jury." Why? Because, they said, Lanier had compared them to "bank robbers" during voir dire.

"Give me a break," Lanier told me on Monday. It's the "classic example" used in law school to describe an alleged conspiracy, he said.

Dan Polster, U.S. District Judge for the Northern District of Ohio.

 

So, What Happens Next?

Monday's opioid settlement does not end the opioid litigation, of course. In fact, the settlement doesn't even resolve the case brought by the two Ohio counties, Cuyahoga and Summit.

That case named as many as 23 defendants at one point and, while some of them settled, a handful of others did not. U.S. District Judge Dan Polster, the judge overseeing the multidistrict litigation, had severed the other defendants from Monday's trial. Plaintiffs' lawyers in the MDL told me the plan is to set a new trial date against those defendants, possibly sometime next year.

On Monday, Polster added one more defendant to that future trial, Walgreens, which wasn't part of the $260 million settlement. That's a big deal, Paul Hanly (Simmons Hanly Conroy) told me. Why? The other defendants are small companies, he said, but Walgreens has "a lot of money."

There's also another trial planned, potentially next summer, in a case brought by Cabell County, West Virginia, and the city of Huntington, West Virginia. Hanly told me that his co-lead counsel Paul Farrell (Greene Ketchum), who is in Huntington, plans to focus on that trial, as will Motley Rice, which represents the city of Huntington.

Although that won't be in Cleveland, Hanly said Polster has the authority to oversee that trial, too.

Joseph Rice of Motley Rice.

 

Could A Global Settlement Still Happen?

With the pressure of trial looming, Polster oversaw last-minute talks over a potential global settlement on Friday. The proposed $18 billion deal with the three distributors—later upped to $48 billion when adding Johnson & Johnson and Teva—was designed to resolve more than 2,600 opioid lawsuits across the nation. Even more important, state AGs, whose cases are in state court and not part of the MDL, were at the negotiation table.

But Hanly told me they were never that close to sealing the deal, which was "sprang on us by four AGs."

"Joe and I didn't know anything about it," he said, referring to his co-lead Joe Rice (Motley Rice).

In Cleveland, lawyers told me it wasn't enough money (Rice said more than half of the global settlement proposal was based on the estimated value of treatment drugs.) They also said the cash would have been distributed over several years—not right away.

Still, Hanley was optimistic his team would renew talks over a global deal, with additional discussions possible in person during the next few weeks.

Then, hours later on Monday, Pennsylvania AG Josh Shapiro announced that his state and three others had reached a $48 billion "agreement in principle" with the same five opioid companies involved in Friday's talks. But it's not quite a done deal: "Our work here is not done—we have to bring other states, counties, and cities on board with this framework," Shapiro said.

But the MDL lawyers said they still aren't on board.

In a statement, they said: "This appears to be the same proposal that 17 municipalities rejected on Friday, and we don't see that changing."

Here's what's happening in other news:

Juul Joust: A diverse set of about 50 lawyers are vying for lead roles in the multidistrict litigation against e-cigarette maker Juul Labs. Some are taking the job personally, saying they have family members affected by the vaping epidemic. About half the lawyers make up a proposed leadership group that has at least 22 people, including 10 women and three minority attorneys.

Skadden Adds: Weil Gotshal partner Allison Brown, who has defended Johnson & Johnson in several talcum powder trials, has joined Skadden Arps. Brown scored defense verdicts in New Jersey in March and October 2018. Her other clients include Pfizer, GlaxoSmithKline, Bausch & Lomb and Philip Morris.

The Judge Did What? Johnson & Johnson has moved to recuse the judge who oversaw a Risperdal trial that ended in an $8 billion punitive damages verdict. Why? Because, according to Johnson & Johnson lawyers at Patterson Belknap and Drinker Biddle, Philadelphia Court of Common Pleas Judge Kenneth Powell high-fived some jurors and posed for photographs with them.

Thanks for reading Critical Mass. I'll see you next week!