CVS Pharmacy

The U.S. Chamber of Commerce, Lawyers for Civil Justice and the American Civil Liberties Union filed proposed amicus briefs Friday in that latest federal appeals court petition to challenge court orders in an upcoming trial over the opioid crisis.

A group of pharmacies, including CVS and Walmart, had petitioned the U.S. Court of Appeals for the Sixth Circuit earlier this month to overturn three rulings by U.S. District Judge Dan Polster of the Northern District of Ohio, who is overseeing 2,600 lawsuits brought over the opioid crisis. They insisted that Polster's rulings, including a discovery order requiring them to produce data on every opiate prescription since 2006, contravened the Federal Rules of Civil Procedure.

Both the Chamber of Commerce and Lawyers for Civil Justice, which both have pushed for reforms in multidistrict litigation, filed proposed briefs supporting the pharmacies. Polster's orders "ignore or flout the rules," wrote Mary Massaron, an attorney for Lawyers for Civil Justice.

"In each case, the district court made a series of rulings under the apparent belief that an MDL exception exists that allows a transferee district court to alter the ordinary constraints, tests, and framework embodied in the rules and precedent applying them," wrote Massaron, a partner at Plunkett Cooney in Bloomfield Hills, Michigan. "No MDL exception is embodied in the federal rules, the MDL statute, or past precedent."

The Chamber of Commerce, along with the National Association of Chain Drug Stores (NACDS), focused in a combined proposed brief on the discovery order, which they called "patently overbroad and wasteful."

"This error has particularly significant implications for the chamber and NACDS's members, for whom the costs of discovery frequently soar into millions of dollars and sensitive company and customer information is potentially exposed, resulting in an inexorable pressure to settle claims regardless of the underlying merits," wrote Sidley Austin's Carter Phillips, for both organizations in the combined brief. "The court should also grant review because the district court's order, if allowed to stand, will set a dangerous precedent that subsequent MDL judges may follow."

The Chamber has filed amicus briefs in the past over Polster's orders in the opioid multidistrict litigation, but Lawyers for Civil Justice's general counsel, Alex Dahl, said it was his organization's first time in that case.

The Federal Rules of Civil Procedure, Dahl said, provide "transparency, clarity and uniformity to procedures in all federal courts."

"So, decisions in MDL cases that ignore the Federal Rules of Civil Procedure run afoul of the very purpose of the rules, and there's no legal justification for doing that," he said. "The statute that created MDLs doesn't change the procedural rules, and there's nothing about consolidation for pretrial purposes that means that courts should look at the rules of procedure any differently in these cases than in any other cases."

Among the rules to MDLs that both groups have proposed, and which a federal judicial committee is considering, are changes to the vetting of cases, many of which the defense bar contends lack merit, and required disclosures of outside litigation financing.

The American Civil Liberties Union took no sides in its proposed brief, which focused on the potential privacy risks inherent in Polster's discovery order—a concern raised also by the pharmacies. The order, wrote ACLU attorney Nathan Freed Wessler, in New York, could involve other medications, such as Xanax, Adderall and buprenorphine, and implicated the rights of patients under the due process clauses of the Fifth and Fourteenth Amendments and the Fourth Amendment's prohibition of unreasonable searches and seizures.

"In light of the extreme sensitivity of patient prescription information and the wide scope of the district court's discovery order, this court should act to minimize the risk of public disclosure and misuse of records," wrote Wessler, in a brief joined by affiliate ACLU of Ohio.

Wessler cited the seminal Fourth Amendment privacy case Carpenter v. U.S. in the U.S. Supreme Court, which he argued, whose 2018 ruling found law enforcement had to get a warrant to obtain a suspect's cell phone data.

In the opioid case, the pharmacies are the defendants in an Oct. 13 trial against Ohio's Cuyahoga and Summit counties. The case alleges the pharmacies created a public nuisance by filling improper prescriptions for opioid painkillers. Distributors and manufacturers of the opiate pills reached settlements in the cases last year totaling more than $300 million.

The Sixth Circuit petition is the latest in which the pharmacies have challenged Polster's orders. In October, the Sixth Circuit denied their petition, filed alongside the opioid distributors, to have Polster recused from the opioid MDL. And, last month, the pharmacies asked Polster to issue an order banning ex parte communications with himself or any of the three special masters, insisting they had been sidelined by some of his orders.

This time, they cited Polster's Nov. 19 order permitting the two Ohio counties to amend their complaints to assert new claims against the pharmacies as dispensers, not just distributors, and his refusal to allow them to file motions to dismiss those claims.

The defense bar briefs focused on Polster's distinctions that he is overseeing an MDL, and not a single case. His orders were an "expansive interpretation" of his authority that "reflect systemic problems" in MDLs as a whole, according to Lawyers for Civil Justice's brief.

"It is questionable whether an MDL is intended or permitted to be a vehicle for a transferee judge to embark on a wide-ranging effort to abate a 'national crisis,'" wrote Massaron, who is head of Lawyers for Civil Justice's class action, mass torts and MDLs committee. "The district court repeatedly reasoned that because the rulings were not made in the context of a single case, but an MDL, they were permissible and appropriate."

In his Dec. 27 discovery order, Polster noted that he allowed the pharmacies to provide the data on a rolling basis, with Ohio first. On Jan. 21, Polster reiterated that distinction in denying the pharmacies' request for a stay on his discovery order pending a decision on their Sixth Circuit petition.

"The motion for stay is not well-taken," he wrote, adding that the request was premature, "quixotic" and "demonstrably wrong."