MEDIA (Legal Newsline) - Drug distributors facing about 50 opioid lawsuits in Pennsylvania have asked the judge overseeing the litigation to order sanctions against plaintiffs for repeatedly refusing to honor deadlines to turn over evidence including information about how state and local governments have handled the opioid crisis they blame on the drug industry.
The sanctions request comes as distributors approach final agreement on a reported $26 billion settlement of federal multidistrict litigation that would include $2 billion in fees for the private attorneys who helped negotiate it. If that settlement is completed, it is unclear whether it would end lawsuits in state court like the ones in Pennsylvania, which have been concentrated before a single judge in Delaware County for pretrial activity.
In an escalating series of motions, distributors McKesson, AmerisourceBergen and Cardinal Health have complained about the failure of Philadelphia District Attorney Lawrence Krasner to cooperate in the discovery process beyond producing easily obtained public information contained on websites and other sources. The defendants say served their first set of interrogatories on the plaintiffs in July 2019 and 13 months later they have “yet to provide any substantive information in response to over two-thirds of these requests,” despite three court orders requiring them to do so.
Philadelphia and related plaintiffs “have treated all discovery obligations and requests as optional in their campaign to deny distributors critical information to defend themselves in Plaintiff’s sprawling suit,” the companies complained in a Sept. 3 complaint seeking sanctions. Delaware County Judge Barry Dozor has repeatedly moved back discovery deadlines, most recently in August extending until Dec. 3 the deadline for producing documents. The defendants complain that extension doesn’t apply to interrogatories, to which answers were due months ago.
The defendants are seeking information about specific individuals accused of illegal drug sales and diversion and any files showing pharmaceutical distributors sold to those people, among other things. The plaintiffs, which range from the City of Philadelphia to Wampum Borough as well as a few labor-union pension funds and other non-government entities, say they have been struggling to comply with subpoenas but need to pass millions of documents through rigorous legal review first.
The distributors’ contention that the plaintiffs “have created a `discovery black out’ violating this court’s orders and stonewalling moving defendants’ ability to defend against plaintiff’s case could not be further from the truth,” the plaintiffs responded. The plaintiffs have also resisted attempts to obtain information from public agencies that aren’t included in the lawsuit, such as the Philadelphia Housing Authority and the police department.
The judge ordered plaintiffs to supply additional information on March 6, which they say they complied with on March 23. The defendants complained those responses were incomplete and the judge ordered plaintiffs to come up with more, which they did in August. The distributors, in their motion for sanctions, said the second batch was “largely window dressing to hide their lack of diligence,” including news articles and a 15-minute video of Philadelphia Police Commissioner Danielle Outlaw being interviewed in a car.
The Pennsylvania communities are represented by private law firms including Baron & Budd, Dilworth Paxson, Young Ricchiuti Caldwell & Heller, Sacks Weston Diamond and Sheller, P.C. Motley Rice, a leader of the federal MDL, also has a role in Pennsylvania opioid litigation, representing Pittsburgh.
Philadelphia and the public entities “are represented collectively by 5 private law firms and somehow still cannot timely or fully respond to discovery, follow the Pennsylvania Rules of Civil Procedure, or comply with this court’s orders,” the distributors complained in their motion for sanctions.
Philadelphia is one of several plaintiffs scheduled for trial next year in the first batch of opioid cases to go before a jury in Pennsylvania. If national settlement talks are successful, those and other trials will be short-circuited, although significant challenges remain as many communities, and the private lawyers who represent them, are expected to hold out for better deals.