Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Opioids and Unorthodox Civil Procedure: Will the MDL solve the crisis?
The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. Four hundred of them are now consolidated before a single federal judge--Judge Dan Polster in the Northern District of Ohio--who has announced his intention to settle not only all the cases before him, but ALL the cases filed across the country, before the end of 2018. If you didn't just say "wow," you are not reading carefully enough. I have a forthcoming article about this litigation here.
The legal animal here is multidistrict litigation, known as the "MDL." MDLs currently occupy about a THIRD of the civil docket and yet not many lawyers or academics are familiar with them. I have previously written about MDLs as "Unorthodox Civil Procedure." They enable the consolidation of similar cases that cannot be aggregated as class actions under Rule 23; these cases are often products liability or health cases because the individuality of the harms can be fatal to the Rule 23 commonality/predominance requirements (although many MDLs contain several class actions as well as individual cases within them). Other prominent MDLs today include the BP oil spill and the NFL concussion case. They have been around since 1968--codified at 28 U.S.C. 1407-- but it is in the last decades that they have become an exceedingly important legal tool, in no small part because of the nationalization of the economy.
The opioid litigation may be the starkest example yet of the power of large MDLs and the unorthodox role the judge assumes in them. Although the MDL statute allows consolidation only for pre-trial procedures, almost all large MDLs settle in the MDL court. This is not surprising; large MDLs are, almost by definition, intractable problems with intractable numbers. Case-by-case resolution through formal litigation pathways could take decades and might not be worth it for attorneys. MDL judges tend to be problem solvers, and Judge Polster is no exception. He has chided the federal and state governments for punting the problem to the courts; he has said that the crisis is to serious to proceed through traditional litigation paces. This quote from the judge pretty much sums it up:
"People aren't interested in figuring out the answer to interesting legal questions like preemption and learned intermediary, or unraveling complicated conspiracy theories… So my objective is to do something meaningful to abate this crisis and to do it in 2018. What we've got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly...We need a whole lot -- some new systems in place, and we need some treatment. We don't need -- we don't need a lot of briefs and we don't need trials. They're not going to -- none of them are -- none of those are going to solve what we've got."
The array of defendants is pretty extraordinary too. The plaintiffs --who range from states, to counties, to Indian tribes, and individuals-- have cast an exceedingly broad net. They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain--which they were--two decades ago. Judge Polster has brought all defendants to his negotiating table--including those defendants who are not even before his court. The 41 state Attorneys General who are still investigating, as well as the states and Indian tribes that have filed in state court, and even the federal government will be before Judge Polster when he divvies the pie. Defendants are more likely to settle when they can get total peace--they don't want lingering cases.
To be clear, this is not unique. Many MDL judges conduct their cases in similar fashion. Judge Polster's courtroom is just getting a lot of attention because of the media's fascination with the opioid crisis and how forthright the Judge has been on the record about his approach.
Nor is this the first major national public health litigation effort--tobacco, fast food, and guns offer earlier blueprints--but it has some unique features, in addition to the aggressiveness of the MDL. Unlike the litigation it most resembles--tobacco--the opioid narrative has a far more complicated chain of causation. Opioids, unlike tobacco, have an important therapeutic purpose; they are FDA approved as safe and effective; they are often prescribed by doctors for sound medical reasons; and then they wind their way from manufacturer, to distributor, to pharmacy, to patient. This complicates litigation because defendants can argue that intervening factors (including other defendants) make any single defendant's culpability hard to isolate.
Nor is any of this is to say that litigation is the ideal way to solve a public health problem. Concerns abound about attorneys fees', conflicts of interests, inadequate settlement and the possible overreach of the presiding judge. No one knows what the remedy will be, if it will be sufficient, or if moneys received will actually go toward those who need it. The complaints are remarkably vague about the relief sought. Some believe MDLs are undemocratic and violate due process. Others welcome them as means toward resolution of huge public problems.
One commentator said to me yesterday-- "anything he does will be smacked down on appeal." Not likely. Any MDL settlement and the pretrial consolidation work Judge Polster does is unlikely to be an appealable final order. That is another aspect of what makes MDLs unorthodox. The single judge has an enormous role.
But litigation has already spurred change in both the industry and the practice of medicine. It has played a central role in the public response to the epidemic, no mater how you slice it. And the MDL is the game changer. For more about this case, read here. For more about MDLs in general, here. For NY Times profile of Polster, here. Posted
by Abbe Gluck [link]