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Federal appeals court rules for pharmacies on pre-trial questions in massive opioid litigation
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Federal appeals court rules for pharmacies on pre-trial questions in massive opioid litigation

The US Court of Appeals for the Sixth Circuit ruled Wednesday that the trial judge overseeing a massive set of cases involving the opioid crisis had violated the procedural rights of pharmacies who were defendants in the matter. In the case, Judge Dan Polster in the Northern District of Ohio had allowed Cuyahoga and Summit Counties in that state to add legal claims to their complaints against the pharmacies when in a normal case it would have been far too late to do so. This, the Sixth Circuit found, was a “clear abuse of discretion,” even if it was a well-intended attempt to efficiently develop the relevant claims in this first trial of thousands of trials pending over the liability of pharmaceutical manufacturers and distributors.

Polster is overseeing a huge multi-district litigation, or MDL, in which outcome of the initial trial on the Ohio counties’ claims will guide the resolution of more than 2,700 other opioid lawsuits from around the country. The multitude of cases have had their pre-trial procedure moved to Polster’s district in order to create efficiency and avoid redundant discovery and other processes. But the pharmacies complained that by allowing the claims in the first case to be modified a year too late, the judge was ignoring the Federal Rules of Civil Procedure as they would normally apply to the case on its own. The appeals court agreed. “[T]he district court’s mistake,” according to the Sixth Circuit, “was to think it had authority to disregard the Rules’ requirements in the Pharmacies’ cases in favor of enhancing the efficiency of the MDL as a whole.”

Cuyahoga and Summit Counties had originally sued the pharmacies, including big national chains like Walgreens, CVS, and RiteAid, only for their role as distributors shipping opioids, not for their role as dispensers filling prescriptions. After what the Sixth Circuit called a “massive” discovery process, the vast majority of the defendants settled with the counties. Polster then allowed the counties to change their complaints to assert dispenser-based claims and issued new and sweeping discovery orders to help flesh those claims out. The pharmacies balked, noting that the counties had earlier decided not to sue them as dispensers. Some of the future thousands of plaintiffs might try to do so, but the pharmacies argued that the judge could not bend the procedural rules in this case just because it was the first of many.

The decision by the appeals court is a temporary win for the pharmacies in what will continue to be a protracted process of resolving the larger MDL and its myriad claims. “The district judge in this case is notably conscientious and capable, and we fully recognize the complexity of his task in managing the MDL here,” wrote the Sixth Circuit panel. Nonetheless, “an MDL court must find efficiencies within the Civil Rules, rather than in violation of them.”