My latest story for Legal Newsline on Forbes.com:
Several Pennsylvania counties are fighting to keep control of their opioid lawsuits as the national law firm Simmons Hanly Conroy, with the active support of the companies it is suing, seeks to create what a rival attorney calls a litigation “cesspool.”
The increasingly acrimonious dispute in Pennsylvania is a likely harbinger of similar fights on a national level, as the big law firms that dominate the business of multidistrict litigation try to concentrate opioid litigation in as few courts as possible in order to negotiate a comprehensive settlement with drug manufacturers and distributors.
Figures show nearly half of all pending federal lawsuits are in MDLs.
“My firm avoids getting involved in the cesspool of MDLs,” said Donald Haviland, a Pennsylvania lawyer brawling with firms picked to lead the consolidated opioid proceedings in a state court near Philadelphia.
Haviland concentrates on suing pharmaceutical companies over pricing and marketing practices, and his lawsuit over the infantile-spasm drug Athcar was featured on “60 Minutes.”
“The problem going on with mass actions is you have a core group of lawyers who live and die by this practice,” he said. “They love to aggregate, and they love to sell their clients down the river for pennies on the dollar.”
Dissident plaintiffs are fighting consolidation efforts out of concern their cases will be relegated to second-class status behind lawsuits by the biggest cities and states. Late last week, a federal judge remanded the State of Oklahoma’s lawsuit back to state court, rejecting an attempt by defendant companies to move it to federal court in Ohio, where U.S. District Judge Dan Aaron Polster is overseeing hundreds of cases consolidated in a federal MDL.
Attorneys general in Tennessee and Arkansas, meanwhile, have tried to seize control of opioid lawsuits from recalcitrant municipalities.
One of the bitterest fights is in Pennsylvania, where several counties and health plans are fighting orders by Delaware County Court of Common Pleas Judge Charles B. Burr consolidating opioid lawsuits in his court and appointing a small group of law firms led by Simmons Hanly to lead the plaintiffs.
Haviland, whose Haviland & Hughes is representing Lehigh County, calls it a naked grab for power by plaintiff lawyers who are more interested in negotiating a settlement with the opioid industry than litigating individual lawsuits. Lehigh County is currently appealing Burr’s order removing its case and sending it to Delaware County.
Haviland said his case was transferred on June 13, a day after Lehigh County Judge Melissa Pavlack set a March 2020 trial date, in a hearing attended by dozens of defense lawyers. The defendant companies successfully petitioned Judge Burr in Delaware County to place a temporary stay on the litigation and move it to his court.
Simmons Hanly Conroy declined to comment. Name partner Paul Hanly was appointed by Judge Polster in Ohio as one of two co-lead counsel in the federal MDL, however, part of a tight group of lawyers who tend to serve repeatedly in such roles. In a court filing, Simmons Hanly said Lehigh County has no right to appeal Judge Burr’s consolidation order because it is “tentative” and doesn’t interfere with the county’s representation by outside counsel.
Given the millions of dollars in fees at stake, there’s usually a fair amount of joisting among lawyers in the early stages of an MDL, said Elizabeth Burch, a professor at the University of Georgia School of Law who has written extensively about MDL practices.
“It’s always there, it’s just not always apparent to outsiders,” Burch said. “There’s the meeting before the meeting,” she said, during which lawyers try to decide among themselves who will lead the litigation. She has been told of horse-trading as law firms agree to step back from leading one MDL in exchange for a promise they will be in charge of another.
Critics, including some ethics experts, say this suppresses competition over fees and can lead to a situation in which smaller clients aren’t represented as effectively as larger ones. The dissident plaintiffs in Pennsylvania say Simmons Hanly and its co-leads represent only five of the 26 counties suing over opioids and 20.6% of Pennsylvania residents.
As a leader of the federal litigation consolidated in Ohio, moreover, they say Simmons Hanly is “in a position to potentially compel the Plaintiff Counties to subvert their interests” to the federal MDL.
In its appeal of the consolidation order, Lehigh County says it is one of seven “home rule charter” counties in Pennsylvania and that Delaware County has no jurisdiction over its courts. Haviland said he isn’t opposed to coordinating efforts with other plaintiff lawyers and the defense, but he won’t consent to putting Lehigh County in a subordinate position to larger municipalities.
If Hanly wants to depose the chief executive of Purdue Pharma, that’s fine, he said, but “I’m going to be there, asking questions for my client.”
“It’s not a class action,” he said. “You don’t get to represent everybody with one client.”
In its filing opposing Lehigh County’s appeal of the consolidation order, Simmons Hanly said time is of the essence.
“Any delay could have disastrous consequences on residents of the Commonwealth,” the lawyers wrote. “Lives are being lost nearly every day in Pennsylvania because of the opioid crisis.”
Haviland said he’s moved further, and faster, than anybody in the state, by winning a trial date and an aggressive schedule for discovery while lining up expert witnesses. Delaware County filed its lawsuit, the vehicle for consolidating all litigation in that county, in September 2017.
“It’s been a year and they haven’t done a damned thing,” he said. “Not one interrogatory.”