The nation is appropriately focused on the COVID-19 pandemic, which has affected every facet of society, including our economy, healthcare, schools and countless additional aspects of “normal” life.
But it is not the only public health crisis the country has been confronting. In 2018, President Trump declared a national emergency to combat the scourge of opioid abuse.
We should be encouraged by important steps in the fight against opioid abuse such as the Department of Justice charging individuals and entities who are alleged to have been engaged in criminal activity that exacerbated the crisis, as well as the Drug Enforcement Administration’s opioid production reduction.
These efforts starkly contrast the efforts that continue in the judiciary. Four years ago, 400 state and local governments filed lawsuits. Today, the more than 2,700 cases are now consolidated in the courtroom of U.S. District Court Judge Daniel Polster in Ohio.
The multi-district litigation (MDL) process he oversees is intended to speed the process for courts to handle complex lawsuits that involve similar conduct; however, resolution of these matters appears no closer today than four years ago.
Judge Polster began the process with a statement suggesting he and the judiciary would “solve” the opioid crisis. He stated on the record that “no one has done enough,” in this regard — plainly suggesting the litigation he is overseeing would accomplish where others had failed.
Early in the process, Polster pushed the parties for a settlement. In doing so, he plainly demonstrated where he thought fault should be allocated. In open court he went so far as to state that defendants are “responsible for having created the opioid crisis” and “must now take some responsibility for fixing it.”
Polster took additional steps that led defendants to conclude the judge was attempting to “direct” the plaintiffs’ trial strategy when he quickly scheduled a new “bellwether” trial after a decision of the U.S. Court of Appeals for the 6th Circuit. The defendants stated in a subsequent motion, “No party asked to have any case restructured… Rather, without warning and without considering the views of the litigants, the district court judge assumed control of the plaintiffs’ cases.”
This follows a strongly worded Writ of Mandamus the 6th Circuit issued in April, finding Polster disregarded the Federal Rules of Civil Procedure in his management of the litigation. Writing for the court, Judge Raymond Kethledge stated, “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance.”
The 6th Circuit further reprimanded Polster, calling his decision to allow plaintiffs in the litigation to amend complaints 19 months post-deadline “plainly incorrect as a matter of law,” which “manifests a persistent disregard of the federal rules.”
Recently, the 6th Circuit declined a motion by defendants to have Polster removed from the MDL altogether.
While their decision did not address the merits of this motion, what is beyond dispute is that litigation is never the proper arena for solving a public health problem. The lack of progress over the last four years plainly demonstrates that courts should be forums for resolving disputes — not solving broader public policy challenges.
It is important to ask who benefits from the continuing litigation? State and local governments will receive funds — just as when they raise tax revenues.
Governments bring these cases because they can raise additional revenue with little financial risk because personal injury lawyers represent the governments while working on a contingency fee basis. It is worth considering who is driving and directing these lawsuits? Elected and appointed officials who are responsible to the public? Or, lawyers with a profit motive?
Public policy challenges like the opioid crisis should be addressed by those entrusted with responsibility to protect the public. These officials are accountable to the public, unlike the litigants in an MDL case.
Litigation, while it may be well meaning, simply cannot solve the nation’s problems, and we should not be outsourcing this problem to lawyers with a profit motive.