A dissident emerges in Pennsylvania's opioid litigation: Lehigh Co. claims its case has been highjacked

By John O'Brien | Jun 22, 2018

Delaware County Court of Common Pleas  

MEDIA – The fight for control of Pennsylvania’s opioid litigation is not over, as Lehigh County is unhappy that its case has been grouped in with more than 30 others and that lawyers it previously rejected have been tasked with overseeing the proceedings.

On June 14, Lehigh County – through private lawyers it hired to represent it – filed a notice of appeal of Delaware County Court of Common Pleas Judge Charles Burr’s order that named three firms to the coveted position of co-lead counsel. What’s happening in Delaware County has stolen Lehigh's ability choose its own lawyers, the county is arguing.

“There is no authority in Pennsylvania supporting the effort to highjack the decision of Lehigh County with respect to its representation," wrote the county’s attorney, Donald Haviland of Haviland Hughes in Ambler.

The firms benefiting from Burr’s order are Simmons Hanly Conroy of New York City, Berger & Montague of Philadelphia and Pogust Braslow & Millrood of Conshohocken.

Delaware County’s attorney, Carmen Belefonte of Saltz Mongeluzzi Barrett & Bendesky in Media, was named liaison counsel. Delaware County was the first to file an opioid case in a Pennsylvania state court, and the plan is to have all state cases heard there.

But Lehigh County resents being subjected to the consolidation taking place in Delaware County and to the appointment of lead counsel to represent its interests.

“Contrary to representations of the voluntarily coordinated plaintiff parties in this court, no county plaintiff, or their counsel, ever contacted Lehigh County or its counsel with respect to discuss either coordination or any proposed ‘leadership structure,’” attorneys for the county wrote in April.

“To the contrary, many of the same lawyers (and their law firms) who seek to be appointed as ‘leaders’ in the coordinated actions were rejected by Lehigh County as proposed outside counsel.

“Having failed in their efforts to be approved by (Lehigh County), these lawyers seek to override the rights of Lehigh County to counsel of its own choosing.”

Lehigh County says its own court “can and will” coordinate its case with the Delaware County proceedings.

Hundreds, possibly thousands, of cases around the country accuse companies that manufactured prescription opioids of downplaying the risk of addiction, causing the country’s current drug crisis. Plaintiffs are seeking to recoup costs associated with the problem.

In Cleveland is a multidistrict litigation proceeding that has brought together all opioid cases currently in federal court. The Simmons firm is also co-lead counsel there.

Major defendants are manufacturers like Johnson & Johnson, Purdue Pharma, Cephalon, Teva, Actavis, Endo Pharmaceuticals and Insys Therapeutics. Distributors are also being accused of a role, and recently a group of national pharmacies asked to be dismissed from the MDL.

Recently, a New York state judge denied dismissal requests made by manufacturers, allowing lawsuits by counties in that state to proceed.

The named lead counsel in Pennsylvania represent many of the plaintiffs. Simmons Hanly is working for Dauphin County and several unions that have filed suit, and Pogust Braslow joins it in representation of those unions.

Berger & Montague, meanwhile, is representing the City of Philadelphia, which was singled out by Lehigh County for its proposed leadership team.

“While they attached lengthy biographical summaries lauding the prior work in massive multi-district and class action litigation, they ignore the issue at hand: Are they best suited to represent the individual interests of Pennsylvania counties who have not chosen to hire them,” the county wrote.

Other state law firms involved in the opioid litigation include Conshohocken’s Marc J. Bern & Partners, which is representing the counties of Armstrong, Beaver, Bradford, Cambria, Carbon, Clarion, Green, Fayette, Lackawanna, Lawrence, Washington and Westmoreland, as well as Bensalem Township.

Robert Peirce & Associates of Pittsburgh is working with Bern on those cases.

A couple of major, national firms have found their way into Delaware County, too:

-Napoli Shkolnik of New York City represents Cumberland and York counties;

-Edelson PC of Chicago represents the Southeastern Pennsylvania Transportation Authority; and

-Motley Rice of South Carolina represents Pittsburgh and Allegheny County.

From the Pennsylvania Record: Reach editor John O’Brien atjohn.obrien@therecordinc.com.

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Organizations in this Story

Berger & Montague PC Cephalon City of Philadelphia Edelson PC Insys Therapeutics, Inc Johnson & Johnson Motley Rice Purdue Pharma L.P Saltz Mongeluzzi Barrett & Bendesky Simmons Hanly Conroy Teva Pharmaceuticals

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