Our Litigators of the Week are Joe Rice of Motley Rice; Paul Hanly of Simmons Hanly Conroy and Paul Farrell of Greene Ketchum, Farrell, Bailey & Tweel—recognized for their role in hammering out a $260 million settlement in the Ohio opioid bellwether trial.

With more than 2,600 pending lawsuits by cities, counties, states and other governments against opioid manufacturers and distributors, all eyes were on Cleveland, where opening arguments were set to kick off on Monday before U.S. District Judge Dan Polster in the Carl B. Stokes Federal Courthouse.

Instead, Rice, Hanly and Farrell led negotiations for the plaintiffs  through Sunday night until the early hours of Monday morning, reaching a deal that quickly puts money in the hands of their clients—the Ohio counties of Cuyahoga and Summit—to combat the opioid crisis.

The three discussed the case with Lit Daily.

Lit Daily: Set the stage for us. Trial is looming, the media is assembled in Cleveland. What was happening behind the scenes?

We were making calls with the defendants and communicating about possible settlements. With each call with the defendants, there were calls with the clients. This process started early Sunday morning and continued until early Monday morning. 

Until the agreements were made, about 60 lawyers from our firms and other firms on the Plaintiffs' Executive Committee were working in our office in Cleveland, preparing for opening statements, as well as dozens of others working remotely from their offices. It was all hands on deck. 

I saw a television interview where Paul Hanly said 'There's nothing that forces settlement like a trial date.' How did that pressure come to bear here? And how much did the position of the defendants change as the clock was ticking down?

Trial pressure played a critical part in being able to reach this settlement, as every trial lawyer and judge would expect. It also played key role in the national global discussions. These plaintiffs walked away from much lower offers the Friday before trial. We had a jury of 11 Ohio residents sworn in and the court was firm the openings would be Monday morning which would start the disclosure of a lot of facts the defendants would have to face. 

What makes the settlement a good deal for your clients? 

The clients understood, as we all do, that there is not enough money to pay for all the damages related to this epidemic. They need help now not after five years of appeals. Cuyahoga County and Summit County will receive $325 million by the end of the year. We are confident each county would have received a larger award if trial proceeded. However, those monies would likely be tied up in appeals for years. The clients made the decision to settle so they can start saving lives immediately.   

Any settlement should be fair and be appropriate for the particular circumstances. With these opioid cases and abating the crisis, a settlement has to adequately help address the epidemic and help communities and people by providing addiction treatment and care resources, educate people about the risks of opioids, and fund ongoing programs. 

Which aspects were most difficult to agree upon?

As in most cases, the money is always a difficult issue. Here with thousands of cases pending that also made settling one difficult for the defendants. For the clients they had been living with this epidemic and litigation, so was also difficult to know when to settle. Both counties insisted that any settlement would make a difference in their communities. 

While the settlement does not offset past and future expenses, the monies made immediately available will be directed toward saving lives. This settlement makes a difference. When they were comfortable, it settled.

What did you make of the verdict in Oklahoma? Did that impact this case?

The verdict in Oklahoma was good for all plaintiffs but, didn't have any direct impact on this case. They are separate cases and claims. 

Were some of your co-counsel disappointed not to have their day in court?

Yes, members of all of our teams have worked for more than two years on bringing these cases. They are trial lawyers that believe in the jury system and were ready for the courtroom. They are disappointed not to be able to present the strong evidence we have accumulated through our discovery. 

In the end, though, the two counties now have the funding they desperately need (will be paid by the end of the year, in large part) to implement and expand programs that will help to abate the opioid epidemic in their communities. The case is always about the best interest of the clients. 

There were many lawyers on all sides involved in this case. What challenges did that present? How did the plaintiffs side work together as a team?

With more than 60 lawyers just from the plaintiffs' side directly involved, communication and division of tasks has been critical. Early in the litigation, we had several in-person meetings that lasted days. Regular standing conference calls, even on Saturdays and Sundays, have also helped everyone stay in sync. You can imagine the daily email traffic. Then in early October, the trial team moved to Cleveland and have been working around the clock. 

What cases in the past have you worked on that provided useful experience to litigate this matter? What made this case unique?

The opioid litigation is the largest, most complex and expensive litigation in the history of our country. It also includes the most important public health disaster in our lifetime. The opioid litigation also is unique in the mass of defendants and the municipalities, states, tribes and other entities who have brought claims. There has not been and may well never be another litigation quite like this one.

We have some of the brightest and most experienced lawyers in the country on our team. Nonetheless, we have been humbled by the enormous task of seeking transparency, accountability and justice.

Certainly, though, we can take learnings from other large litigation involving multiple states, municipalities and defendants, such as tobacco, BP Deepwater Horizon, Volkswagen diesel emissions, and some of the medical drug and device MDLs. The tobacco case and BP provided the most relevant experience.

The case isn't completely over—which defendants are still left and what's likely to happen next? 

Walgreens remains a defendant for Summit and Cuyahoga counties. We expect Judge Polster to issue a new discovery and trial schedule related to these claims. The discovery has led to substantial additional facts. The role of the large pharmacy segment on the drug industry has been surprising. The next trial is going to take a close look at how the opioid pills were handed out.  

What message does the settlement send? And how might it impact the 2,600 other pending opioid cases?

We have shown that hard work by the court and the parties can get even the most complex case ready for trial. This landmark settlement validates the public nuisance law which is the cornerstone of the litigation. The defendants settled on the courthouse steps rather than face a public trial. 

Going forward the millions of documents produced and hundreds of depositions taken will provide a roadmap for future cases. Hopefully a fair, global settlement that provides much needed financial help to municipalities and states now will be negotiated.  

A settlement such as this sends the message that the PEC is ready to go to trial and is not afraid to present our facts before the jury. It also demonstrates our commitment to persevering to obtain the appropriate amount of resources our clients need.