Can a Judge Solve the Opioid Crisis?

Thanks to multidistrict litigation, a Cleveland-based jurist plans to set drug policy nationwide.

 By Abbe R. Gluck
 

What began as a single opioid lawsuit in Ohio is now the only such case that matters. Every significant opioid lawsuit in the U.S. has been lumped together into a giant case before one federal judge in Cleveland who has declared his extraordinary ambition to “solve” the crisis in 2018.

Judge Dan Polster is bringing before him all the major companies involved, including drug manufacturers like Purdue Pharma, distributors like McKesson and retailers like CVS. Other parties swept into Cleveland—some of which haven’t even sued yet—include the Justice Department, several Native American tribes, more than 40 states, and hundreds of counties, cities and people. New cases will continue to be added.

The judge has made clear that he doesn’t plan to bring hundreds of cases to trial. Instead he wants a policy solution: a comprehensive settlement that covers everyone involved in the opioid crisis, even those who never filed any lawsuit.

Yes, this kind of arrangement is legal. It is also increasingly common. Multidistrict litigation cases, or MDLs, have become the court system’s tool of choice for handling high-profile harm caused by national companies. MDLs have been deployed in recent years to address the NFL’s concussions, General Motors ’s ignition-switch woes, and BP’s oil spill. A ruling is expected any day on whether the Facebook privacy breaches will become an MDL too.

One reason for the rising popularity of MDLs is that a series of Supreme Court rulings over the past two decades have made it more difficult to bring class-action lawsuits. MDLs provide an alternative. Instead of consolidating plaintiffs into a “class” so they can file a single lawsuit, a slew of similar plaintiffs from different jurisdictions file separately. MDLs allow those cases to be grouped together before a court and resolved simultaneously. Some MDLs even bundle class actions together into a single megalitigation.

To some observers, this arrangement seems lawless or even undemocratic. Judges presiding over MDLs are not bound by special rules. They often have a cowboy-on-the-frontier mentality, trying single-handedly to address cases involving intractable problems and enormous numbers of actors. MDL defendants may insist on reaching a “global settlement”—one that covers all the cases against them, even those not actually before the MDL court. That gives the judge an unusual amount of leverage.

Can a Judge Solve the Opioid Crisis?
ILLUSTRATION: GRANT ROBERTSON

Unlike class actions, MDLs do not even aim toward trial. The law that authorizes them says they may resolve only pretrial issues. The original idea was that individual cases would return home for trial after the MDL. But today the process is resolved in MDL court 97% of the time. Pretrial issues are usually not subject to review by higher courts, giving the MDL judge still more power.

Judge Polster captured the scope of his ambitions in a January hearing on the opioid cases: “What I’m interested in doing is not just moving money around, because this is an ongoing crisis. What we’ve got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly. . . . We don’t need a lot of briefs and we don’t need trials. . . . None of those are going to solve what we’ve got.”

Is a federal courtroom, presided over by a single judge, a better forum for making policy than 50 state legislatures or Congress? Judge Polster said courts have to step up because legislators have not done enough. Moreover, many plaintiffs in cases like the opioid and Facebook matters might never have access to justice without a way to aggregate their claims. Trying so many similar suits individually would take forever, and many lawyers would not even take on their cases.

Judge Polster has been unusually open about his desire to arrive at a settlement, but almost all MDL judges get creative. Cases become big MDLs because they involve an intractable mess of issues—in this case, differing state laws and a range of defendants and harms. That complexity is often what makes them unsuitable as class actions in the Supreme Court’s view.

MDL judges can use unconventional processes to drive settlements. That freedom may bring needed relief to plaintiffs, but it also creates risks. A judge has more potential leeway to abuse power. And the MDL bar is a small, specialized group of lawyers; some worry the chummy relationships among counsel may lead to quick settlement for fees rather than zealous advocacy for results, especially because everyone knows the cases are not going to trial.

The special process for consolidating similar cases from different jurisdictions was set up by Congress in 1968 to accommodate a rash of antitrust litigation against electrical-equipment manufacturers. But the centrality of this process to modern litigation tends to shock even experienced lawyers. On the federal docket, 39% of open cases are part of one MDL or another.

The staggering scale of the opioid proceedings now underway in Cleveland demonstrates that America’s federal system for civil litigation is in some respects outdated. It was built before the modern national economy and is designed to process small numbers of claims in individual states. Today, companies aim products at the U.S. market as a whole, meaning parallel harms can be inflicted on different kinds of parties from Anchorage to Orlando.

The MDL has emerged as an unorthodox mechanism to overcome the court system’s anachronisms. If it makes the public uncomfortable, Congress or the courts can formalize new rules for the presiding judges, or else rethink civil litigation to align with the realities of the modern business world. Otherwise single judges, crafting their own rules, will continue to be tasked with resolving some of the most vexing conflicts in America.

Ms. Gluck is a professor of law and faculty director of the Solomon Center for Health Law and Policy at Yale Law School.

Appeared in the May 8, 2018, print edition.

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