We’ve made mention of terms like consolidation and MDL here on the blog a few times. They’re important terms to know, as they can have drastic impacts on the outcomes of very important pieces of litigation. Today’s post is no different. In fact, the use of consolidation in today’s post may set the stage for a large portion of the remainder of the nation’s response to the opioid epidemic.
As a reminder, consolidation happens at the state court level when many cases of a similar type share a considerable number of circumstances. If 500 people took drug X and were afflicted with adverse reactions A, B, C, and D then those 500 cases could be consolidated. The court can then apply rulings, orders, and/or deadlines to the group of cases to more efficiently handle a large volume of cases. Outcomes of of earliest trials help to serve as a predictor of the outcomes of the remaining cases.
MDL stands for multi-district litigation. It is similar to case consolidation but occurs at the federal court level. A party or parties must petition for the formation of an MDL and, if it is approved, all similar cases filed in any federal court in the country are sent to one court. As such, the plaintiffs involved in an MDL come from multiple geographic areas. Plaintiffs in 66 lawsuits ranging from counties, cities, and even two states gripped by the over-distribution and over-prescription of powerful narcotic painkillers are seeking to have their cases consolidated into a single multidistrict litigation. The petition was filed in September and a ruling is expected by the end of November.
Plaintiffs stretch across Alabama, Illinois, Kentucky, Ohio, and West Virginia. The city of Cincinnati itself is a plaintiff in one lawsuit among those potentially headed for an MDL. In its suit, the city states that “the sheer volume of prescription opioids distributed to pharmacies in Cincinnati is excessive for the medical need of the community and facially suspicious. Some red flags are so obvious that no one who engages in the legitimate distribution of controlled substances can reasonably claim ignorance of them.”
If this sounds familiar, that’s because it is a frequent refrain for those begging for some actual control to be exercised over the nation’s drug distributors. It should instantly call to mind the suit filed by the office of the Attorney General of West Virginia against McKesson – the largest drug distributor in the United States. That suit was filed when West Virginia officials realized that between 2007 and 2012, McKesson had shoveled close to 100 million doses of hydrocodone and oxycodone onto a state with a population of 1.8 million.
“Some red flags are so obvious that no one who engages in the legitimate distribution of controlled substances can reasonably claim ignorance of them.” It seems like Cincinnati hit the nail on the head. And, McKesson; along with Cardinal Health and AmerisourceBergen Drug Corp, may finally have to answer some questions over the logistics of how and why they’re flooding the country’s cities and towns with drugs with no concern for the harm and pain they are leaving in their wake.
More specifically, however, they will have to answer for specific failures based on the requirements of the Controlled Substances Act. The plaintiffs are claiming that the drug companies and manufacturers “breached their duty to monitor, detect, investigate, refuse and report” orders coming into these municipalities. Had they been operating with any degree of critical thought whatsoever, they would have shown some degree of alarm and acted to intervene.
Whether the opioid cases will be consolidated is still up to a panel to decide. However, regardless of the outcome, it is encouraging to see state and local leaders standing up for the people who elected them to serve and look out for their communities.