The distributors — AmerisourceBergen, Cardinal Health and McKesson — along with other companies are trying to strike a megadeal that would release them not only from the immediate trial, brought by two Ohio counties, but the rest of the cases. Most of the cases are being supervised by Polster, but several hundred are percolating in just about every state court.
There are many more drug industry defendants, including the pharmacy chains Walmart, Rite Aid and CVS, in the far-flung web of litigation. But with Purdue Pharma’s tentative deal caught up in a lengthy bankruptcy court review, the six corporate defendants in this trial could be the first in the national opioid litigation to reach a so-called global settlement. Plaintiffs’ lawyers say they hope such a deal would have a domino effect on the remaining defendants, encouraging them to reach a comprehensive deal too.
Four people familiar with the settlement discussions characterized them as “fluid.” While parties had been talking about a deal worth nearly $50 billion, lawyers for thousands of small governments whose cases are before Polster said they wanted more money, the timeline for payments to shorten and specific guarantees on how those funds would be distributed.
The six defendants appearing at Polster’s request include the three giant drug distributors; a small distributor; Teva, which makes generic drugs; and Walgreens, the pharmacy chain.
Officials from New York City; Boston; Chicago; Nashville, Tennessee; Broward County, Florida; Delaware County, Pennsylvania; and Huntington, West Virginia, are in the courthouse as are the attorneys general from Tennessee, North Carolina, Pennsylvania and Texas.
The parties either did not respond to messages or declined to comment.
As fevered negotiations continued in Cleveland hotel rooms and on cross-country conference calls, Polster on Thursday swore in 12 jurors, in anticipation that opening statements would begin as scheduled Monday. Inexorable moves such as these can often prod the sides to the desired result: settlement.
Another issue in the talks is public transparency: If the companies reach a settlement, plaintiffs’ lawyers want to ensure that records of what transpired during the years of one of the country’s greatest public health crises are unsealed.
People knowledgeable about the negotiations said that a sticking point was the fees for the private lawyers who represent the small governments. To prepare for the trial and the cases at large, which has taken years, lawyers from 21 law firms have taken over 450 depositions, compiled millions of documents, and spent millions of dollars on expert witness reports and data analysis, said a person familiar with the processes.
Friday is unfolding as a dynamic, daylong exercise in “shuttle diplomacy.” The day began with a brief gathering of the parties in Polster’s courtroom, after which they decamped to separate rooms.
Polster’s special masters — litigation experts who, from the outset of the filings, have had daily responsibilities marshaling the cases and acting as liaisons to the judge — will move among the rooms, working offers and counteroffers, and reporting back. A lawyer said that the judge himself had, on occasion, been stepping into the caucus rooms.
As of Thursday evening, no one familiar with the discussions could predict with confidence whether Friday will conclude with a deal or a directive for opening statements to begin Monday morning.
In January 2018, Polster held an initial gathering of these parties in his courtroom. There were only several hundred opioid cases on his docket then — there are now more than 2,300 — and the assembly was intended to give the parties and the judge himself a foreshadowing of what was at stake. At that time, mayors, county executives and chiefs of police showed up, to offer the judge a ground’s-eye view of their communities’ devastation by opioids. Several recounted bitter family experiences.
One executive there that day was Mayor Steve Williams of Huntington, who is expected to be in court Friday. His city of 48,000 was featured in the Oscar-nominated documentary “Heroin(e)” and is often described as the epicenter of the opioid epidemic.
He stood against a hallway window, watching as groups of lawyers milled about. “I’m fighting drug dealers in white coats,” he said quietly. “We need the resources to clean up this mess and make sure it never happens again.”
This article originally appeared in
.