Yesterday, the first bellwether trial in the opioid multidistrict litigation (MDL) came to a close with a jury verdict in favor the plaintiffs. In this case, Ohio’s Lake and Trumbull counties sued CVS, Giant Eagle, Walgreens, and Walmart, arguing that the pharmacies drove the opioid crises in the counties by oversupplying prescription opioids and were thus liable for the public nuisances they created. The jury agreed, deliberating for 8 days after the 6-week trial. The litigation faced significant delays due to the COVID-19 pandemic.
The MDL arose from thousands of federal lawsuits brought by local governmental entities nationwide against opioid distributors and manufacturers, and it has never been uninteresting. The first scheduled bellwether settled on the eve of trial. Mandamus petitions flew, raising an assortment of procedural issues, such as district court recusals and the authority of municipal entities to raise claims based on harm to citizens’ health and welfare. One petition was successful, despite the high bar for mandamus relief. The Sixth Circuit granted mandamus and reversed leave to amend in the MDL 10 months after discovery had closed. The panel also reversed the district court’s discovery order that the pharmacies produce more than 10 years of nationwide dispensing data, which the panel had previously stayed.
The appellate activities did not stop there. On an interlocutory appeal, the Court issued a split opinion reversing the district court’s novel certification of a “negotiation class.” This decision marked the second time the Sixth Circuit rejected Judge Polster’s flexible application of the Federal Rules of Civil Procedure in the MDL, the first being the reversal of the leave to amend. And the mass action is unlikely to lack appellate excitement any time soon—at least one pharmacy has already indicated that it will appeal the jury’s verdict, citing a juror’s violation of court rules by researching an issue and presenting her findings to the rest of the jury.
We will continue to monitor further Sixth Circuit developments.