ADEA Washington Update

Regulation by Litigation? Evidence Issues Arise as Plaintiffs Seek to Hold Opioid Industry Accountable

(Department of Justice, Federal Court, Opioid Abuse, Prescription Drug Abuse) Permanent link   All Posts

As over 700 opioid lawsuits were filed by numerous government entities, hospitals, Native American tribes and individuals, one district court was chosen to marshal together all the cases. Hon. Dan A. Polster, U.S. District Judge for the Northern District of Ohio, was chosen by the Judicial Panel on Multidistrict Litigation (MDL), which created MDL No. 2804, also known as the Opioid MDL. Last month, Judge Polster issued an order requiring plaintiffs to turn over hundreds of prescription records or abandon the right to present any evidence of specific prescriptions they claim were “unauthorized, medically unnecessary, ineffective or harmful.”

If the plaintiffs choose not to turn over records, they will be restricted to using experts and sales records to show the defendant companies distributed more pills than were medically necessary and that the excess can be attributed to their marketing practices and lack of care in controlling illegal diversion. Opioid manufacturers, distributors and pharmacists have asked for access to exactly which prescriptions were medically unnecessary or out-and-out illegal.  

The plaintiffs are arguing the focus should be on misrepresentations and other improper behavior by manufacturers, distributors and pharmacies, and the defendants say the plaintiffs should be required to provide evidence of people who should not have received prescriptions.

The Drug Enforcement Administration keeps records on every single opioid pill from factory to retail pharmacy, but this volume of data has the potential to overwhelm the court. Given the high-profile nature of the lawsuit, the large number of plaintiffs and massive financial stakes, there is ongoing pressure on both sides to settle.

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