NATIONAL TRIAL LAWYERS THE SUMMIT

NATIONAL TRIAL LAWYERS

THE SUMMIT

NATIONAL PRESCRIPTION OPIATE LITIGATION

MDL: No. 2804CASE UPDATE

HONORABLE DAN A. POLSTER

Biography

• Federal Judicial Service:United States District Court, Northern District of Ohio Nominated for appointment by President Clinton in July, 1997, confirmed by the Senate on July 31, 1998, sworn in on August 10, 1998.

• Education:Harvard College A.B., 1972 (cum laude)Harvard Law School, J.D., 1976 (cum laude)

• Career Record:1976-82: Trial Attorney, U.S. Department of Justice, Antitrust

Division, Cleveland, Ohio

1982-98: Assistant U.S. Attorney, Economic Crimes Division (Northern District of Ohio)

MDL No. 2804FILED CASES TO DATE

• As of January 19, 2018:

Number of Cases Transferred is approximately 333 matters that includes:

State 24City 61County 225Fund/Union/Third-Party Payors 14Health Care Facility 3Individual 2Tribal Cases 4

JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

(JPML)

• “Plaintiffs’ Motion for Transfer of Actions Pursuant to 28 U.S.C. §1407 For Coordinated or Consolidated Pretrial Proceedings” was filed September 25, 2017.

• JPML Hearing held on November 30, 2017.

• JPML Order dated December 5, 2017, appointing Hon. Judge Dan A. Polster as MDL 2804 Judge, and transferring the first cases to the MDL in the USDC NDOH.

INTERIM LIAISON COUNSEL

JUDGE POLSTER APPOINTS

JAMES C. PETERSONof

AS INTERIM LIAISON COUNSEL ON DECEMBER 5, 2017.

PLAINTIFFS’ LEADERSHIP PANEL

JUDGE POLSTER BY ORDER DATED JANUARY 4, 2018,

APPROVED PLAINTIFFS’ LEADERSHIP PANEL

PLAINTIFFS’CO-LEADS

• Paul T. Farrell, Jr.• Greene, Ketchum, Farrell,

• Bailey & Tweel, LLP

Paul Hanley, Jr.Simmons Hanly Conroy LLC

Joseph F. RiceMotley Rice LLC

PLAINTIFFS’ C0-LIAISONS

Peter WeinbergerSpangenberg, Shibley & Liber, LLP

Steve SkikosSkikos, Crawford, Kikos & Joseph

Troy RaffertyLevin, Papantonio, Thomas,

Mitchell, Rafferty & Proctor, P.A.

PLAINTIFFS’EXECUTIVE COMMITTEE

Don BarrettBarrett Law Office, P.A.

Erin DickinsonCrueger Dickinson LLC

Elizabeth CabraserLieff, Cabraser, Heimann &

Bernstein, LLP

James R. Dugan, II Dugan Law Firm

James E. CecchiCarella, Byrne, Cecchi, Olstein,

Brody & Agnello, P. C.

Paul J. GellerRobbins, Geller,

Rudman & Dowd, LLP

PLAINTIFFS’EXECUTIVE COMMITTEE

(Continued)

Peter J. MougeyLevin, Papantonio, Thomas,

Mitchell, Rafferty & Proctor, P.A.

W. Mark LanierLanier Law Firm

Michael J. Fuller, Jr.McHugh Fuller Law Group

R. Eric KennedyWeisman, Kennedy & Berris

PLAINTIFFS’ EXECUTIVE COMMITTEE

(CONTINUED)

Ellen RelkinWeitz & Lexenberg PC

Lynn L. SarkoKeller Rohrback

Hunter J. ShkolnikNapoli Shkolnik PLLC

Chris A. SeegerSeeger Weiss LLP

Roland TellisLevin, Papantonio, Thomas,

Mitchell, Rafferty & Proctor, P.A.

James D. YoungJSDC Law Offices

PLAINTIFFS’ STEERING COMMITTEE

Leadership is in the process of developing a Plaintiffs’ Steering Committee (PSC).

JUDGE POLSTER APPOINTS SPECIAL MASTERS

Judge Polster by Order dated January 11, 2018, appointed Special Masters:

• David R. Cohen• Francis McGovern• Cathy Yanni

MDL HEARINGS HELD TO DATE

• Telephonic Status ConferenceDecember 13, 2017

• In-Person ConferenceJanuary 9, 2018

Approximately 200 Counsel Present

HIGHLIGHTSJanuary 9, 2018,

Conference Hearing• Judge Polster began the conference with a brief discussion concerning the

gravity of the issues in this litigation. Among other things, Judge Polsteridentified the significant number of opioid-related deaths which occur each day as well as the fact that as a result of the opioid crisis, the life expectancy in the United States decreased for the last two years, something that has not happened in nearly 100 years. Moreover, Judge Polster stated that he was “ashamed” to find our country in such a situation, particularly given that the opioid crisis is a manmade event.

• In his opening remarks, Judge Polster also noted that unfortunately, the other branches of government failed to stop this problem and as a result, these cases are now before him. It is clear that Judge Polster has a grasp of the issues and he intends do everything in his power to stop the flow of pills and provide relief for communities who have been harmed by the opioid crisis, even if it means that the Court will take an usual role in the process. Judge Polster explained that because these cases are not typical, the Court will not apply an ordinary approach to case management.

HIGHLIGHTSJanuary 9, 2018,

Conference Hearing(Continued)

• To that end, rather than establishing a discovery schedule, setting motion deadlines, and a trial date, Judge Polster expressed a desire to work with the parties and other stakeholders (e.g., FDA, DEA, insurance companies) at the outset, to focus the group’s efforts on negotiating a prompt resolution of the litigation. Judge Polster acknowledged that any resolution would need to:

– (1) change the way opioids are marketed and distributed to ensure that they only end up in the hands of a patients who have a legitimate medical need;

– (2) restore impacted communities to make them safe and functional again; and

– (3) provide treatment and care for victims of the opioid crisis, including those who suffer from addition and the tens of thousands of children whose addicted parents can no longer take care of them.

HIGHLIGHTSJanuary 9, 2018,

Conference Hearing(Continued)

• It is not yet clear how long these initial settlement discussions will take, but the Court is not going to permit the parties to engage in any discovery or formal litigation, including any motion practice, until they first attempt to reach an early resolution. The Court will permit existing discovery produced by defendants in the City of Chicago v. Purdue Pharma, L.P., et al., Case No. 1:14 case to be shared among plaintiffs’ counsel. (Some 5 Million copies of documents.) Additionally, the Court may consider ordering the ARCOS data produced to plaintiffs, if it would help further settlement discussions.

• Finally, if ultimately it becomes clear that an early resolution is not possible, Judge Polster said he would not make legal decisions in a vacuum. Instead, the Court will “set the parties loose on each other,” to conduct extensive fact discovery. The Court indicated that it would not entertain dispositive motions until the full factual record was developed.

HIGHLIGHTSJanuary 9, 2018,

Conference Hearing(Continued)

• Plaintiffs argued for production of ARCOS Database.

• Defendants argued that dispositive motions should be heard before any production is made.

• Judge stayed any production except for the above-noted documents from the City of Chicago matter and possibly the ARCOS database.

UPCOMING MDL HEARINGJanuary 31, 2018, at 9:00 a.m.

Judge Polster has scheduled an In-Person Informational Conference for January 31, 2018, at 9:00 a.m., in Cleveland, Ohio, and requests the following parties be in attendance:

• Attorney Generals for non-filed cases• Attorney Generals for filed cases - 12 to date• County Commissioners• Mayors;• Representatives for Hospitals• Representatives for Third-Party Payors• FDA and DEA Personnel• Department of Justice Personnel• Defendants’ Insurers, and• Defendants’ Representatives

PRELIMINARY SUBMISSIONS BY PARTIES

• Submissions were presented to Judge Polster on January 5, 2018, for recommendations on organizing and managing the MDL.

• Plaintiffs

• Manufacturer Defendants

• Major Distributor Defendants

PLAINTIFFS’ ORGANIZATIONAL PROPOSAL (Page 1 of 3)

PLAINTIFFS’ORGANIZATIONAL PROPOSAL (Page 2 of 3)

PLAINTIFFS’ORGANIZATIONAL PROPOSAL (Page 3 of 3)

MANUFACTURER DEFENDANTS’ JOINT SUBMISSION (Page 1 of 6)

MANUFACTURER DEFENDANTS’ JOINT SUBMISSION (Page 2 of 6)

MANUFACTURER DEFENDANTS’ JOINT SUBMISSION (Page 3 of 6)

MANUFACTURER DEFENDANTS’ JOINT SUBMISSION (Page 4 of 6)

MANUFACTURER DEFENDANTS’ JOINT SUBMISSION (Page 5 of 6)

MANUFACTURER DEFENDANTS’ JOINT SUBMISSION (Page 6 of 6)

MAJOR DISTRIBUTOR DEFENDANTS’ SUBMISSION (Page 1 of 7)

MAJOR DISTRIBUTOR DEFENDANTS’ SUBMISSION (Page 2 of 7)

MAJOR DISTRIBUTOR DEFENDANTS’ SUBMISSION (Page 3 of 7)

MAJOR DISTRIBUTOR DEFENDANTS’ SUBMISSION (Page 4 of 7)

MAJOR DISTRIBUTOR DEFENDANTS’ SUBMISSION (Page 5 of 7)

MAJOR DISTRIBUTOR DEFENDANTS’ SUBMISSION (Page 6 of 7)

MAJOR DISTRIBUTOR DEFENDANTS’ SUBMISSION (Page 7 of 7)

PRELIMINARY THOUGHTS BY JUDGE POLSTER

• Resolution Discussions• Failing Resolution, discovery to be ordered• Possible early trial date 2019