Northern District of Ohio Judge Dan Polster, boldly asserting that he would attempt to resolve the opioid crisis because federal, state and local governments had failed to do so — presided over a wide-ranging status conference on January 11 in the opioid MDL assigned to him.

In November 2017, a panel of federal judges decided to combine the more than 100 separate actions filed by various local government agencies against the pharmaceutical industry into a single Multi District Litigation in the Northern District of Ohio.  The case was assigned to Judge Dan Polster, a former federal prosecutor and twenty year veteran of the federal bench who plainly announced that he intended to extract a quick and global settlement in the actions so that the harms caused by the opioid crisis, including insufficient treatment resources could be addressed.

In a hearing surprising for its candor and attention to the bottom line, Judge Polster apportioned blame for the current crisis to every party involved, including the government plaintiffs, noting that each shared responsibility for causing the crisis, which he dubbed “100% man made.”  He portrayed the federal court system as an illogical place to solve the crisis but indicated his determination to do the job because all of the other parties had failed, telling the assembled lawyers that “I intend to do something meaningful to abate this crisis and to do it in 2018.”

At Wednesday’s status conference, the judge exhorted the parties to settle quickly so that resources could go where needed.  He and Magistrate Judge David Ruiz, acting as special master, met separately with the plaintiffs and defendants to discuss the relative merits and weaknesses of the case as he saw them.  According to participant at the hearing, the judge is somewhat uninformed about the details of the closed system of distribution through which opioid sales are made, and is considering holding an “information day” at the end of this month so that the parties can provide relevant information about drug manufacture and distribution to the court.  In what is perhaps an indication of how wide-reaching Judge Polster considers his duty to resolve these cases and end the crisis, he indicated that he would urge the Drug Enforcement Administration to attend the information session and give its views.  He also invited two separate sets of state Attorneys General to participate in the information day hearing and consider participating in settlement discussions so that defendants would not have to fear successive lawsuits by non-party states after the MDL settled.

It remains to be seen whether Judge Polster can rein in a case this large with parties this disparate.  He is determined to try though, and has put a deadline on his efforts.  He announced that if the parties had not settled the suits by the end of the year, he would try the cases brought by the Ohio plaintiffs as a single bellwether trial in 2019.

In a separate but related development, on January 9, 2018, Judge Terence Kern, a federal judge in Oklahoma, granted an injunction halting a first-of-its-kind lawsuit by the Cherokee nation filed in Tribal Court.  Judge Kern held  that the Cherokee Nation Tribal Court lacked jurisdiction to hear claims asserted against the nonTribal defendants including the big three distributors as well as three national retail drug chains.. He enjoined the Attorney General of the Cherokee Nation and the judge assigned to the case in Tribal Court from allowing the Cherokee Nation’s case to proceed.