MEDIA – Opioid litigation in Pennsylvania appears to be in chaos as a prominent law firm has withdrawn from a leadership position on the plaintiff side and unions and the county surrounding the city of Allentown fight efforts to consolidate all lawsuits in a single court.
The Philadelphia law firm of Berger Montague was forced to relinquish its role as co-lead counsel as well as its representation of the City of Philadelphia after acknowledging a potential conflict of interest because Berger Montague represents some of the opioid distributor defendants in an unrelated class action.
Lehigh County also has complained that Paul Hanly of the national law firm of Simmons Hanly Conroy doesn’t have a Pennsylvania law license and hasn’t obtained the permission of local courts to practice in the state.
The recent filing by lawyers who purport to lead Pennsylvania state-court litigation that is being coordinated in Delaware County included only the names of Tobias Millrood, a co-lead counsel, and Carmen Belefonte, who is liaison counsel. Hanly declined to comment on the filing or Lehigh County’s allegations, other than to say he’s still co-lead counsel with Millrood.
The turmoil in Pennsylvania mirrors conflicts in other states as lawyers scrap over what could be billions of dollars in fees from opioid-related lawsuits. While more than 1,000 federal lawsuits have been consolidated in multidistrict litigation proceedings in Ohio, hundreds more lawsuits are lodged in state courts around the country, with many of the same lawyers who lead the federal MDL trying to thrust themselves into control positions in the state suits.
In Pennsylvania, Delaware County Judge Charles B. Burr has ordered all the litigation consolidated in his court, responding to requests from defendants and some plaintiff law firms. Burr initially appointed Simmons Hanly, Berger Montague and Pogust Millrood as co-lead counsel with local attorney Carmen Belefonte as liaison. With Berger Montague out the coordination action remains under the control of Hanly and Millrood.
Lehigh County and several labor unions continue to fight consolidation, saying they are unfairly being prevented from collecting evidence and interviewing witnesses while Judge Burr maintains stays on their cases. A judge in Lehigh County set a March 2019 trial date for the county’s lawsuit, only to have Judge Burr order a halt to the litigation at the behest of defendants and rival plaintiff lawyers.
“We are literally stuck,” said Donald Haviland Jr., who represents Lehigh County. “We can’t move ahead on our own case management order and our supposed leadership structure in Pennsylvania has disappeared.”
Haviland has been accused by lawyers for the opioid industry of being “unnecessarily combative” in court filings, and indeed he complained in August about being dragged into the “cesspool” of the national MDL. Lehigh County said it’s willing to cooperate with the other plaintiffs in Pennsylvania opioid lawsuits but needs to prepare its own case for trial, including asking questions of industry witnesses about issues specific to Pennsylvania law.
“The proponents of forced coordination appear to have a different agenda,” Lehigh County said in a Nov. 9 filing. “Their agenda appears to have always been that all the Pennsylvania opioid litigation must be corralled in one place, and parked there until the MDL court in Ohio decides what can and should be done.”
Opioid litigation, once seen as a slam dunk for the plaintiffs, is proving more difficult to resolve than many lawyers – and at least one judge – anticipated. In Ohio U.S. District Judge Dan Aaron Polster, who’s in charge of the federal MDL, once predicted he could oversee a swift settlement process that bypassed pretrial maneuvering and motion practice. After plaintiffs and defendants failed to agree on numerous legal questions, Judge Polster grudgingly scheduled bellwether trials for next year, while still prodding both sides to negotiate a settlement.
Now defendant companies complain the plaintiffs have refused to turn over fundamental evidence they possess including the prescriptions they say were medically unnecessary or illegal that caused the problems of diversion and addiction they blame on manufacturers, distributors and pharmacies. In a pending motion they ask Judge Polster to dismiss claims for money damages based upon improper prescriptions unless the plaintiffs turn over the evidence they’ve been ordered to provide.