After considering a motion brought by the plaintiffs in 46 actions pending in nine federal districts across the country, the Judicial Panel on Multidistrict Litigation (MDL) entered an order on Tuesday, transferring those actions to the Northern District of Ohio for coordinated or consolidated pretrial proceedings. Those cases represent only a fraction of the cases filed against the numerous manufacturers of prescription opioid medications recently. Centralization will likely swell what has already been a deluge of claims against the drug makers. The vast majority of cases filed to date have been brought by governmental plaintiffs—states, counties, and municipalities—but the filing of claims by third-party payors has begun to pick up speed as well. The order does not confirm whether opioid lawsuits brought by employee benefits plans and insurers will also be centralized in the MDL. In Re: National Prescription Opiate Litigation, MDL No. 2804.
At least one third-party payor plaintiff, Philadelphia Teachers Health and Welfare Fund, opposed centralization. The Fund, whose case is currently pending in the Eastern District of Pennsylvania, advised the Panel that it intends to file a motion for centralization of third-party payor claims in a separate MDL. The Panel advised that it will address that motion, if it is filed, in due course. Given that one of the bases for centralization of the moving parties’ actions is that they are all cities, counties, and states with similar claims, centralization of third-party payor claims in the same MDL may not be appropriate. Further, the amount of third-party payor cases is almost certain to grow rapidly over the coming year and the likelihood that different issues will arise relating to those, as opposed to the city, county, and state claims, separate consolidation may be more prudent. Either way, the current movement toward large-scale litigation against pharmaceutical companies who have harvested massive profits from the sale and distribution of opioids presents a good opportunity for the insurers, benefit plans, and other third-party payors who have born the cost of the consequences.
Unless and until Philadelphia Teachers Health and Welfare Fund or other third-party payor(s) move to consolidate, the status of third-party payor claims is somewhat in flux. In all likelihood, the question will not go unanswered for long. As for the city, county, and state cases generally, consolidation and coordination is certain. The case is, In Re: National Prescription Opiate Litigation, MDL No. 2804, soon to be established in the United States District Court for the Northern District of Ohio. If you have any questions about opioid litigation or mass torts subrogation, please contact Ryan Woody at [email protected] or Tim Mentkowski at [email protected].