In a startling August exchange with lawyers on both sides of the opioid MDL in Ohio, U.S. District Judge Dan Aaron Polster laid bare the reality of multidistrict litigation, including how in most cases “lawyers drive the train,” not their clients. But the opioid MDL is different, Polster said. Private plaintiff lawyers representing more than 1,000 towns, cities and counties have to contend with the political realities of working with elected officials, and defendants must deal with the fact that even if plaintiffs lose the first few trials, eventually they will win “and everyone goes into bankruptcy.” Here’s Polster knocking heads together, hard:
THE COURT: I also want to say this: It was not my idea or desire to have this litigation track, because I knew how expensive it would be, but more important, you know, I don’t think it’s going to accomplish much.I mean, you know, Pete, and Paul, and Paul, I assume you’re going to try very hard win this trial, right, and –whenever it is, March, August, September, whenever it is,right
WEINBERGER: Yes, Your Honor.
HANLY: Yes, Your Honor.
THE COURT: Okay. Obviously. What do you think will happen if you win?
WEINBERGER: Well, one of two things: It — One of two things: It will drive the parties toward the resolution table, or there will be an appeal.
THE COURT: Well, it will be appealed no matter — they’ll — it will be appealed. But this is my prediction: If you were to win –remember, your clients are not — this is not the typical MDL where the plaintiffs are a disparate group of individuals around the country who — you know, they’re just individuals, all right, and candidly, in those cases, the lawyers drive the train. I know that. I’ve been around. Your clients are not a disparate group of individuals. They are elected, political officials. They are mayors of cities, they are county executives and/or county commissioners. On the stateside, they’re State Attorneys General, all right? They have constituencies. And my prediction is, if
you were to win, every other mayor, governor, attorney general, county executive, is going to say, Not only is my case worth as much as Cleveland or Akron or Cuyahoga County or Summit County, but it’s worth more because of this, this, and this, and there wouldn’t be enough money in the world to settle it, and there’s no way that the cases could be resolved because those officials couldn’t resolve it for a realistic and fair amount politically. So if you win, the result is that we’re going to be trying — I won’t, because I can only try the handful in the Northern District of Ohio.
I will have to send these thousand cases around the country to all of my colleagues, and they’ll be trying these things long after all of us have retired. So while you want to win, you don’t want to win. And that’s equal the problem with the defendants, because, you know, if the plaintiffs win, you got to go to the mat against every city, county, state, and ultimately, the federal government, and your clients are regulated — in a regulated industry. And guess what? You go to war with every government in this country, you’re not going — your clients won’t be around. Maybe Walmart will, but no one else will be. So everyone is going to go into bankruptcy, and then no one gets money other than bankruptcy lawyers. So — and if the defendants win, plaintiffs will say, you know, All right. We’ll just keep trying one until we win. And, of course, you will win some. So that’s why I didn’t want this litigating track. That’s why in my other MDL I kept having bellwethers and they all settled right — some of them on the midnight before trial.
It was your group, Pete.
And I finally figured out after three years what was happening. So I didn’t want this litigating track. The defendants insisted they wanted to file all these motions. I said, All right. We’re not going to just do it in the abstract. There will be concrete cases and we’ll proceed to trial. So what I’m strongly requesting is that all these great lawyers which we have — who we have in this room and on the phone, start exercising some client control. So what I’m strongly requesting is that all these great lawyers which we have — who we have in this room and on the phone, start exercising some client control. On the plaintiffs’ side, your clients who represent most of the citizens in this country want and need two things: They want us collectively to implement the procedural reforms, which everyone has been working very hard over the last number of months to put together.
I know with the PEC and the AGs and the manufacturers, those are pretty much in place, all right? And they’re not quite as far along with the distributors, but it’s getting there. And implementing those procedural reforms will do a tremendous amount to reduce the number of people who are getting addicted, which is the best thing. All right. So cities, counties, states, the public, that’s what they need, and so do those people. It will save them from getting addicted.
And then, of course, we need to come up with some amount of money — it’s not going to solve it or provide — we’re not talking about all the money necessary for drug treatment, but some meaningful amount to help treat the people who are addicted so that they don’t die. Because if we wait five or ten years until we try a bunch of these cases and it goes up to the Sixth Circuit and then the U.S. Supreme Court, guess how many people are going to die. You just keep multiplying the 40-, 50,000 a year who are dying now. Because everyone knows that if you’re a drug addict and you’re on street drugs, you’re playing Russian roulette every day. So that’s what’s needed. So, you know, all this discovery and depositions and whatever, and a trial, will accomplish zero. But I know it, and you know it, and I think you’ve got to, again, exercise some client control.