The Plain Dealer
By Eric Heisig
23 October 2019

Opioid claims that Cuyahoga and Summit counties settled for a combined $260 million on Monday are only part of one of the most complex sets of litigation in U.S. history. 

Thousands of lawsuits have been filed across the country to try to make sense of an epidemic that has affected so many family members, friends and neighbors, and to hold accountable the actors who fueled it.

The litigation found its way to Cleveland, where U.S. District Judge Dan Polster has been tasked with managing the federal lawsuits. Early on, he told everyone involved that he would like to see them reach a mass settlement that could put money toward combating the epidemic.

Nearly two years after Polster was appointed to oversee the lawsuits, some settlements have been reached, but they're far from the large-scale deal he envisions. Most of the deals were struck as trial dates neared, including one that was set to continue Monday in the federal courthouse in Cleveland for Cuyahoga and Summit counties. The drug companies also mostly settled the cases they imminently faced, and not all the ones pending against them.

Still, as a result of this litigation, the counties are set to receive hundreds of millions of dollars in cash and medication, all of which they pledge to use to combat the epidemic. 

The rest of the litigation continues in state and federal courts. 

Here is an explainer for the litigation, where it stands, what the counties are set to receive and where the lawsuits could go in the future:

Why did the counties sue? 

The counties sued drug manufacturers, distributors and pharmacies for the roles they're accused of playing in fueling the opioid epidemic that has ravaged many parts of the U.S.

In Northeast Ohio, thousands of people have died from overdoses, and the addiction epidemic is one of the worst public health crises in recent history.

The suits largely accuse manufacturers of promoting and downplaying the addiction risks of opioids; accuse distributors of failing to flag suspiciously large orders of painkillers; and accuse pharmacies of ordering large amounts pills as the death toll rose.

The money the counties sought was largely to recoup expenses that rose because of the epidemic, including for law enforcement, social services, child welfare and public health.

The drug companies have denied any legal liability and said they followed all applicable federal guidelines.

Polster, a federal judge since 1998, likely chose the Cuyahoga and Summit counties for the first federal trial because he would be the one who could preside over it. Other cities and counties, if and when their federal trials occur, would be sent back to courts in their areas.

Wasn't the trial supposed to commence Monday?

Yes, and the line that had formed outside the Carl B. Stokes U.S. Courthouse before it opened at 7 a.m. Monday was proof.

Drugmakers Endo International, Allergan, Mallinckrodt and Johnson & Johnson reached settlements with the counties prior to jury selection for the trial, which occurred last week. But six companies remained as of Friday, and opening statements were supposed to take place Monday morning.

Nationally renowned trial lawyer Mark Lanier was set to give openings along with co-counsel Don Migliori. Lanier had references to poppies and "The Wonderful Wizard of Oz" ready to go, he told reporters Monday.

However, agreements with distributors AmerisourceBergen, the Ohio-based Cardinal Health, Henry Schein, McKesson and drugmaker Teva Pharmaceuticals were struck over the weekend. Four of the companies didn't reach their agreements until about midnight Monday.

Pharmacy chain Walgreens, a sixth defendant in the trial, didn't settle.

What's in the agreements?

The agreements call for AmerisourceBergen, Cardinal Health and McKesson — collectively known to many as the "big three" — to pay a combined $215 million.

Teva will pay $20 million and give $25 million worth of Suboxone, an addiction treatment drug.

Henry Schein, which is a much smaller distributor than the other three and was only sued by Summit County, agreed to pay $1 million to set up an educational foundation and pay $250,000 for the county's legal expenses. 

The agreements come on the heels of the agreements four other drugmakers made, which are worth a combined $66.4 million.

Is this the end of the litigation?

Absolutely not — it's not even the end of the lawsuits the two counties filed.

Before the trial began, the counties "severed" several major companies from their case in an effort to speed up the trial and make it easier for the jury to digest the case. But that doesn't mean the claims against those companies — which include Walmart, CVS, Rite Aid and Discount Drug Mart — just go away.

Instead, those claims were merely put on hold for the time being. Polster wants to talk soon with lawyers on both sides to set up a trial date for the remaining defendants. Such a trial could take place next year.

Aside from that, Polster oversees more than 2,300 federal lawsuits filed by cities, counties, Native American tribes, hospitals and representatives of babies born with opioids in their system.

The settlements reached so far in the federal litigation have largely only been for Cuyahoga and Summit counties, though OxyContin maker Purdue Pharma reached a deal that could net up to $12 billion to resolve all the cases it faces nationwide. That deal's future hinges on proceedings in a bankruptcy court.

Finally, there are also lawsuits filed in state courts. Most state attorneys general, including Ohio's Dave Yost, are litigating their cases outside of the litigation Polster oversees. Ohio's lawsuit against manufacturers is set to go to trial in August 2020, while a separate suit against distributors is set for trial two months later.

Will other trials also end in settlements?

It's possible, and we now have multiple instances that suggest as much.

In addition to the settlements brokered in the local cases, Purdue Pharma and Teva reached multi-million-dollar agreements with the state of Oklahoma prior to a trial in that state earlier this year. Johnson & Johnson elected to take their case to trial, was found to be at fault and was hit with a $572 million judgment. The company is now appealing.

The Ohio counties' trial was set up as what is known as a "bellwether" to see how a jury would react to lawyers' claims and defenses. It also showed how companies react when the pressures of a trial date grow.

"If they blink before trial, the logical inference is they're going to blink before trial next time," Case Western Reserve University law professor Andrew Pollis said.

When will the counties receive their money?

The drug companies that settled almost all reached agreements that require them to pay their share immediately. The only amount that will be doled out over a period of years is the $20 million Teva agreed to pay.

How much money will each county receive?

The counties agreed to split the settlements 62-38, with Cuyahoga County receiving the majority of the money.

Some of the settlements were a mix of cash, medication and charitable donations. Some money was also specifically designated to cover attorneys' fees.

Of just the cash, Cuyahoga County will receive more than $179 million. Summit Count will receive more than $110 million.

How will the counties use the settlements?

Leaders in both counties said they'll use the settlements in several ways, all related to the opioid epidemic or the litigation itself.

Cuyahoga County announced a plan this month on how to use the money it received so far — which after attorneys' fees was estimated at about $23 million. The plan included money for the Alcohol, Drug Addiction and Mental Health Services Board, St. Vincent Charity Medical Center's Rosary Hall and a diversion program to keep low-level drug offenders out of the county jail.

As for the rest of the money, the county hasn't yet said how it would be used. Cuyahoga County Executive Armond Budish also said Monday that he is working with experts to figure out the best use of the medication the companies will give as part of the settlements.

Summit County said it was forming a task force to figure out the best way to spend its portion of the opioid money.

Both counties' plans were unveiled to ensure the public knows this money is going to be used for opioid problems and not just to plug a budget hole. They do not want to repeat what happened with hundreds of billions of dollars paid out of a Big Tobacco settlement reached in the late 1990s, when tobacco money instead went into states' general funds.

Isn't there a pending settlement that could affect the whole country?

Yes, but it's far from a sure thing.

State attorneys general from North Carolina, Pennsylvania, Tennessee and Texas announced a tentative deal with AmerisourceBergen, Cardinal Health, McKesson, Teva and Johnson & Johnson that would, if enough bought in, resolve all the lawsuits filed by local and state governments nationwide. 

The deal is worth more than $48 billion and includes a combination of cash, services and medication used to treat opioid addiction.

The attorneys general are looking for other states and lawyers to buy in, and said the litigation as a whole could devolve and result in parts of the U.S. not receiving the help it needs.

As of Monday, it appeared the plan's architects had a long way to go.

The attorneys general put forth a similar plan Friday following a failed set of negotiations at the federal courthouse in Cleveland. They said lawyers for the cities and counties were holding out.

The municipalities' lawyers said at the time that the plan wasn't worth enough. Their position hadn't changed by Monday.

"This appears to be the same proposal that 17 municipalities rejected on Friday and we don't see that changing," lead lawyers for the cities and counties said in a statement.

Still, those lawyers have spoken about the need for a global settlement.