MEDIA – It was supposed to make things simpler. But a Delaware County judge’s attempt to consolidate opioid lawsuits in his court has resulted in a sprawling litigation that has plaintiffs lawyers elbowing their way in, elbowing their way out and elbowing each other.
There are seven appeals, minimal pleadings about the actual cases and a side trip to federal court. It all has lawyers representing Pennsylvania counties and unions on contingency fees admittedly behind other groups preparing for trials around the country.
There are out-of-state firms that want spots on the leadership committee, including one that is not holding back in questioning the current committee’s motives and performance so far (the final section of this article lists these insults verbatim).
There’s a powerful Philadelphia firm shut out of that committee that wants its cases back on its home turf, a venue known for its giant jury verdicts and attracting plaintiffs from around the country with pharmaceutical lawsuits.
And there’s confusion. The lawsuits were consolidated in Delaware County because that county was the first to file its lawsuit. But now, that case is no longer there, leaving the question of whether Delaware County is the proper venue for the other 40-odd lawsuits.
“The coordination efforts spearheaded by the Court of Common Pleas of Delaware County have collapsed,” wrote the Philadelphia firm Anapol Weiss in a January motion before the state Superior Court.
Keeping the cases in Delco is a “legal impossibility” and “wholly unjustified and, in a sense, indefensible at this point,” says Anapol Weiss.
The lawsuits are filed against opioid makers that allegedly downplayed addiction risks and distributors and pharmacies that allegedly overlooked red flags when supplying pills to addicts and dealers.
The counties and unions want to recoup costs they say they’ve incurred as a result. Nearly a year-and-a-half after Delaware County filed, two test cases recently progressed to the point that defendants filed their preliminary objections – a step that is sometimes taken within the first month of a lawsuit being filed.
The clog could prove costly for at least one group of plaintiffs lawyers. A look at Dauphin County’s contract with Young Ricchiuti and Simmons Hanly shows an escalating scale for recovery.
If a settlement is reached soon, prior to a ruling on the defendants’ motions to dismiss, those firms get only 10%. It rises incrementally until post-verdict appeals, after which the firms get 40%.
The disappearance of Delco’s lawsuit
Delaware County was the first government or union to file an opioid lawsuit in Pennsylvania. It’s why Judge Charles Burr assumed he could coordinate all subsequent cases in his courtroom there.
The county’s lawyers – Simmons Hanly of Illinois and Pogust Millrood of Conshohocken, even make up the lead counsel team for all consolidated cases.
But they decided to amend Delco’s complaint in November in order to add defendants, bringing the total companies sued to 52.
Doing so gave defendants a second chance to remove the case to federal court. Removal must be instigated within 30 days of a complaint being filed, and Walgreens, a new defendant, took advantage.
Lawyers at Anapol Weiss are representing public and private unions and want out of the Delaware County proceedings. They say the court no longer has jurisdiction because Judge Burr based his decision to coordinate on Delco being the first to file, and that case is gone from the court.
They’re asking the state Superior Court to hit the eject button and allow the court in Philadelphia, which has annually been termed a “Judicial Hellhole” by a national legal reform group, to take over.
“(Delaware County) was stripped of jurisdiction over the lead case following this removal and, by extension, all the constituent ‘coordinated’ cases,” the firm said.
It’s one of seven appeals the Superior Court will hear regarding the coordination in Delaware County. Even the appeals were consolidated, though a recent order undid that. Appellant briefs are due by March 25.
The fight in federal court
In the meantime, Delaware County is fighting to get its case back where it was filed. It has asked the federal judge to remand the lawsuit, hoping to defeat the argument made by Walgreens that it is essentially a class action.
Opioid cases around the country have been removed to federal court, and a multidistrict litigation proceeding in Cleveland oversees more than 1,500 lawsuits. Bellwether trials are scheduled to start later this year.
But Walgreens’ application of the Class Action Fairness Act of 2005, which gives federal courts jurisdiction over class actions in which more than $5 million is in controversy, is a different argument, in the realm of opioid litigation. Most federal cases were removed based on diversity jurisdiction.
Walgreens says Delco’s lawsuit is operating as a class action and presents issues of national importance that trigger federal jurisdiction.
“Walgreens’ argument here is baseless,” says Delaware County’s attorneys (Pogust Millrood, Saltz Mongeluzzi, Schwarz Mongeluzzi and Simmons Hanly), relying on a U.S. Court of Appeals for the Fifth Circuit decision in one of Mississippi Attorney General Jim Hood’s cases.
“Quite simply, every court to consider Walgreens’ position since Hood (and many before then) has found it dispositive for both ‘class action’ and ‘mass action’ CAFA removals. The result here should be no different.”
Meanwhile, counties' lawyers are litigating against each other
As they fight the federal front, those Delco lawyers are opposing efforts from national law firms to join them as lead counsel. Motley Rice’s Joe Rice, for instance, wants a seat at the table, similar to the one he enjoys on the federal MDL.
Last year, he asked Judge Burr to select him to fill a spot vacated by Daniel Berger of Berger & Montague. Berger had to step down from the position because that firm represents some of the opioid distributor defendants in an unrelated class action.
Motley Rice represents Allegheny and Erie counties and Pittsburgh (the contract with Erie entitles Motley Rice and another firm to 25%). Rice noted that those cases hadn’t even been filed yet when lead counsel in Delco was selected and touted his experience leading litigation like the massive tobacco case of the 1990s.
The main argument against is that Paul Hanly of Simmons Hanly has already been named lead counsel, and he is also on the federal MDL team. Adding Rice would stack the Pennsylvania team with lawyers whose main interest is maximizing recovery in the federal MDL, another firm says.
“The conflict becomes more untenable where – as is currently the case – there is no other national firm with the litigation prowess and resources on the leadership team (such as Scott + Scott) to serve as a counterweight and protect the Pennsylvania state court plaintiffs,” Scott + Scott wrote in response to Rice’s request.
Of course, that firm has also petitioned for a spot on the lead counsel team.
Donald Haviland of Haviland Hughes didn’t want any part of coordination. He had already scored a trial date in Lehigh County when his case was transferred to Delaware County. He’s since been trying to flee Delco, warning in a Pennsylvania Record article last year that MDLs are cesspools.
Below is a collection of the insults plaintiffs lawyers are lobbing at each other in court documents.
-Haviland Hughes on Berger Montague representing the opioid distributors while pursuing lead counsel status:
“BM failed to disclose its conflict of interest to this Court, in violation of its duty of candor to the tribunal.”
“(T)he Philadelphia Plaintiffs, and its remaining counsel at Dilworth (Paxson), successfully campaigned initially to foist BM’s representation on other plaintiffs, like Lehigh County, through a succession of non-disclosures, half-truths, and outright lies – causing months of prejudicial delay to the rights of Lehigh County to proceed in its own court with its own chosen counsel…”
-Dilworth Paxson, which is asking to replace Berger Montague on the lead counsel team, in response:
“(C)ounsel for the District Attorney of Lehigh County continues to submit unjustifiable filings that consume judicial resources with the transparent objective of being appointed to a co-lead counsel position.”
-The lead counsel team (Pogust Millrood and Simmons Hanly), on a petition for discovery by Haviland Hughes:
“This Honorable Court has given Lehigh County more deference than is required under the Rules of Civil Procedure, which Lehigh County seems bent on abusing.”
-Scott + Scott, on the performance of the lead counsel team:
“Given the paucity of reports from the current co-lead counsel, Plaintiffs are unaware of what, if any, discovery has taken place yet…”
-The lead counsel team, on Scott + Scott’s motion to have one of its lawyers to be named co-lead counsel:
“It also reflects a disruptive and dissonant spirit that is counter-productive for a firm seeking co-leadership.
-Haviland Hughes on Scott + Scott:
“Movants claim to be willing to ‘work cooperatively and collegially with other plaintiffs’ co-lead and liaison counsel’ while simultaneously disparaging those with whom they wish to work.”
-And the greatest hits from Scott + Scott’s response to these attacks:
“The co-lead firms’ argument that (Scott + Scott) seek(s) to replace the co-leads and are hostile to the MDL is a complete red herring designed to distract from the unavoidable truth that the interests of the MDL Leadership are not always consonant with those of the state plaintiffs here.”
A lead counsel team with Scott + Scott would be “a deliberative body (that) would stand in marked contrast to the ‘my way or the highway’ approach of the current co-lead firms, which, by their own admission, are currently beleaguered by ‘appeals from coordination and… serial efforts… to retool the leadership…’”
“This Court itself envisioned these cases moving forward expeditiously by permitting discovery to commence on Day One of the issuance of the (case management order)… Yet, this has not happened under the co-lead firms’ management, and the coordinated proceeding continues to fall further behind similar proceedings in other jurisdictions.”
“Cross-notices for depositions continue to roll in – sometimes as many as 10 or 15 in a single day. To date, the Pennsylvania plaintiffs have no protective order in place and they have not participated in any depositions. As a result, the Pennsylvania cases are not currently proceeding in coordination with the MDL; rather, they are lagging behind, with the interests of Pennsylvania plaintiffs effectively subjugated to those of the MDL plaintiffs.”
“(Scott + Scott does) not dispute that co-lead counsel completed some tasks since their appointment on June 13, 2018, although the terms used to describe these tasks – ‘voluminous,’ ‘strategized,’ ‘navigated,’ ‘numerous’ and ‘significant’ – appear to be grandiose.”
“(M)ore could have, and should have, been done in the last six months. In short, the slow pace of progress in the coordinated proceedings evidences that either co-lead is compromised by the stated goals of the MDL to ‘slow dance’ state court actions in favor of the MDL, or that additional co-lead firms are needed to assist the current leadership team.”
From the Pennsylvania Record: Reach editor John O’Brien at firstname.lastname@example.org.