Panel 1: Opioid Litigation


– Good morning everyone. We just want to thank everyone
for coming to this event. It’s being cosponsored by the
Classical Liberal Institute, the Center of Civil Justice at NYU’s Journal of Law & Business. – We want to thank all of our
panelists for participating. We look forward to very
interesting conversations throughout the day. A special thank you to
Chief Judge Wood, as well, for giving our keynote address. And lastly, a huge thank
you to our moderators, Professor Arthur Miller and
Professor Richard Epstein. – Please note that this
event is being recorded, so if anyone has any concerns feel free to contact one of us. Please look out for the
Journal of Law & Business’s spring issue. Which will feature an
article by our panelist Dr. Taleed El-Sabawi. – Thank you all again for coming, and now David Sickert from CCJ. – Thank you so much. Really appreciate you all being here relatively early in the morning. Thank you to Gabrielle and Hailey. They’ve done a really,
really wonderful job organizing this event. I also want to send apologies from our Director Peter Zimroth, who can’t be here this
morning to give these introductory remarks, but he wanted say that he’ll be here later and thank you all for coming very much. And again, thank you very to
the Classical Liberal Institute and the Journal of Law & Business. They put an enormous
amount of work into it and did a really great job. – Well, I want to thank you all. I actually helped him on a paper, but I don’t want to mention that now. (audience laughs) My name is Richard Epstein,
and I’ll be the moderator on the afternoon panel. Which will deal with the regulatory medical and
reform issues right now. I just would like to welcome you on behalf of the class of Liberal Institute, and myself and my co-director Mario Rizzo, and Laura Creste, who’s sitting
in the rear of the room, that’s done so much to make this go. We always think that
litigation’s a kind of a prison to which you can evaluate
a larger social purposes in any given organization, and we hope that we’ll
bring some enlightenment to this issue with the two
panels that we have today. So with that said, I’m
gonna turn it over to the master of procedure,
the wizard we have all awed, the class action king, Arthur Miller. – Who? (audience laughs and applauds) – He’s also a Yankee fan. – Thank you, Richard. It’s nice to be here. This is a lovely room. As usual, the front row is almost empty. (audience laughs) I’ve noticed that for about 60 years now. That’s always the case. I have no stake in this litigation. I represent no one. I’m not involved in it. Indeed, the last 24 hours
have been a bit of a learning experience for me. In trying to get some sense of this. I guess I’m up here only
because I’m a director of the Center for Civil Justice. Which is interested in all
sorts of procedural things, and this is the big kid in town. Now, I want to know about you. How many of you are students? Don’t worry, I’m not calling on anybody. I just want to get a
sense of the audience. Richard is a student, we have a gaggle of students over there, couple back there. How many of you are practicing lawyers? Practicing lawyers? How may of you are here just because you’re sort of interested in the subject for some reason not
connected with the law? Okay, okay. So, first thing we’ve gotta do
is figure out who’s up here. Why don’t I start with you, David. Who are you, and why are you here? – Why I’m here, first of all,
because my tort’s professor, Mr. Richard Epstein, suggested that I might have an interest, and that the panel would
benefit from my presence. So that’s the immediate
cause for my being here. I’m a partner at Paul Weiss. I’ve been involved in mass
torts since late 1980s. It’s been the major part of my practice, and I’ve represented defendants both before trial and
particularly at trial. I tried several mass tort
cases to juries over the years. – And your connection
with this litigation? – Well, I represent one of the
founding families of Purdue. A Dr. Raymond Sackler’s family. And that’s my role. Among other lawyers, of course. – Okay, I’m trying to
position for the audience the cast of characters. Sheila. – Well I guess I’m one
of those characters. I’m Sheila Birnbaum, and
I’m a partner in Dechert. I use to teach torts at NYU, in products liability in mass torts. I guess, besides Joe
Rice sitting next to me, I know as much about the opioid litigation as anyone in the country. Having represented,
and still representing, of course, Purdue. Who is in the center of this litigation, and the controverse,
so I think I can bring public insights to the
discussion we’re gonna have. And, Joe Rice and I have
been in opposition in many many mass torts, and I
think we would agree, at least on one thing, that
this is the most complex, interesting, one that has
ever occurred in this country. And the impact of what
happens here will affect tort law going forward, I
believe, for the next 20 years. – So you’re only going to
give us public insights? Who’s gonna give us the private insights? – I’ll give that to you. (audience laughs) – And once Joe does that
then I will have to respond, so we’ll get it. – David? – To be clear, these
are at least my remarks, and I’m assuming for the others, I’m speaking of my personal views. I am not speaking on behalf of my clients, and I generally don’t speak
on behalf of my clients in functions like this. And I say that because the media interest in this litigation is massive, and I want to be clear that my views, that I’m saying today, are simply my own. – And let me just add
one more thing, I mean, this litigation is hot
and heavy as they say. I mean, sitting here this
morning, there have been two major decisions have already
come down this morning. So, if you’re engaged in this litigation, there’s hardly a day that goes by that, not only did decisions
come down and filing occur, but remember this is a
nation wide litigation that is in an MDL, of
course, in Cleveland. In which there are over 2,000 cases file. Plus state court cases, plus AG cases, plus city and county
cases, hospitals, tribes, insurance companies, and we’ll
get into many of these issues as we move forward. – Joe? – My name’s Joe Rice. I’m from South Carolina. Practice with Motley Rice. And I have grown up in
the mass tort world. I started practice in
1979 in asbestos practice, where I had cases with Sheila and David. Then I started doing pharma litigation Asbestos people decided
to file bankruptcy. I was fortunate enough to
be involved as the lead negotiator in the tobacco litigation, which David was involved in. And then I was fortunate enough to become lead negotiator in the BP oil spill case. Then did the Takata bankruptcy. Volkswagon class negotiation. And now I am colleague council in the MDL on behalf of the federally filed cases. And Sheila will point this out if I don’t, I also represent nine of
the State Attorney Generals, and I have cases in state court as well. So I’m a little bit involved
in the opioid cases. – I get a feeling that our
panel is composed of people who have been involved in every bad thing that has happened in the United States. (audience laughs) – But only on the side of
fixing the bad conduct. – Jonathan? – Yeah, so, my name’s Jonathan Novak, and I’m on the panel
because I’m from Texas, and every panel has to have a Texan. That’s not true. – Not in New York. (laughs) – Now I have a different
perspective up here, although I’m active in
this litigation both on the federal level as
well as we represent a state in State Court. My firm also is part of the
leadership of the Texas MDL. Which is very similar to the federal MDL but just involving the
counties and state of Texas. But, the real reason they
invited me is because, prior to everyone else jumping on board with the cool new litigation, I was doing this work for DEA for years. So, I was a government
litigator and regulator, and a lot of the work
that we’re look at now, a lot of the causes of
action are born from the work that was done at DEA and
from the CSA and the CFR, and how those have been
interpreted over the years. So I will try not to be the
boring government regulator. I’m no longer a boring government
regulator, just boring, but in private practice. But, that’s the perspective
I’ll be bringing today. – Any of you represent individuals? – There are very few
individuals that are suing in these cases. Arthur, there are some class
actions that have been filed on behalf of neonatals,
whose mothers were addicted. And the class action issues
have not yet been briefed in the MDL on that. But, we’re not talking here
about individuals suing companies. – Except, I represent one. Personal injury case in South Carolina, where we sued the doctors
and the local folks. In large part, to bring
attention to the problem in our community. Because we were showing
doctors as making prescriptions and some defendants. Some manufacturers are in there. But, we’re now in a bankruptcy court. And in the bankruptcy court it’s people that have a claim
pursuant to bankruptcy law. Which doesn’t have to, necessarily, be a fully manifested claim, and may not go through
the same rigorous review that it would go through in a court. So, in the Insys bankruptcy, we saw immediately upon
the bankruptcy filing, significant number of
law firms come forward saying they represented
personal injury claim. To try to get a significant role in the unsecured creditors committee. Because the U.S. Trustee
has ruled in that case, and anticipate it will be
done in the Purdue case. That governmental entities
cannot sit on the official committee of unsecured
creditors of bankruptcy. Which is the committee
that normally manages the bankruptcy from the creditors side. So what you’ve got here now
in a bankruptcy setting, that we didn’t have in
litigation, is we’re gonna have new potential claimants, that are gonna have a significant role, depending on how that
committee gets created. Which is being created today. So, we don’t know. – Let me just add one thing. Interesting footnote ideas is, many years ago there was a
previous opioid litigation against Purdue, in which
there were mostly individuals. And a number of those cases were tried. Most of them, if not all of them I think, to a defense verdict. Because addicts are very
difficult people to sue. Companies, and when they
do, and you get into their history and background,
you find that there’s a lot of things that occurred that they never brought to the floor. That does not help their causation cases, among other things. So, that whole litigation
ended with a settlement. Relatively small settlement. And for years there was not litigation, so Joe’s right, the bankruptcy many change
some of the equation, but it’s in a different form. – One last question for the audience. How many of you are not lawyers? Lotta not lawyers. So we have to watch out for jargon. Otherwise we end up talking to each other, and that’s incredibly boring. – Maybe that’s what we should do, right? (laughs) – Maybe we ought to, because of that, set the stage a little. – Okay. – Talk about what this
litigation is about. – Okay. – We’ve just jumped into the middle. – I’m gonna go back before the litigation. Jonathan, you’re the right
person to respond to this. It’s called a crisis. – Yes sir. – [Arthur] What the hell does that mean? – In 2017, over 72,000
Americans died of overdoses. That’s a significant
number of human beings. Americans dying. From overdoses. The fact is, America
consumes 85%, or more, of the opioids in the world. Canada doesn’t have this problem, Germany doesn’t have this problem, England doesn’t have this problem, and Japan doesn’t have this problem. This goes back, and we can
get into how it starts, but at the end of the day
there was a normalization of an incredibly dangerous addictive drug. A normalization and a demand,
not only from the public. I want that drug, I
hear that drug is great. But there was a demand by doctors. There was a demand by
pharmacies to carry it. There was a demand by
doctors to prescribe it. Everyone got on board. The crisis, is that we
normalized something so dangerous and it’s killing us. And its hobbling our workforce, and it’s taking money
that’s in our communities, and it’s going towards Narcan, and emergency responders. Instead of that money going
towards bridges and schools, and things like that. It’s a crisis on all
levels of the society. – [Arthur] David? – I don’t think that
there’s really any question that’s been raised by
anybody in this litigation. But that there’s a crisis
and it’s been ongoing, evolving, it’s a crisis that
really progress has been made in some instances to mitigate it. The best minds in the country,
public of health authorities, independent researchers, people
working hard on the ground, including the DEA, have worked
extremely hard to figure out how to deal with this crisis. Nobody in the litigation questions that. I think the real reason that we’re here at this law school, and with this panel, is to talk about whether
the solution to that crisis really lies in the
private litigation system in a particular way that
the litigation has evolved. So, there’s no question about the crisis. The issue is is civil
litigation the solution to a public health crisis,
and I don’t think it is. – Well, I think you gotta
go back and look at what the allegations are, and why the
lawsuits were filed against the parties that they’re filed against. – What’s the theory of the case? – Right. So, there’s many causes of action, but I think they centralize
around this story. And I know my colleagues will
have some difference with me. But, there came a point in
time when the manufacturing community decided that what should happen, in our pharma world, is we should start
actively marketing drugs, and narcotic drugs. And in order to actively market,
they hired huge marketing staffs and created a massive
industry of marketing in narcotics. Then the allegations go, that
in doing so they begin to mislead and provide
inappropriate information, insufficient information, et cetera. In 2008 that lead to a
criminal indictment of some manufacturers and some representatives, and they pled guilty to that
criminal indictment of fraud, and misconduct in the
marketing of their drugs. But by that time, the
pharmaceutical industry, the distributors, and the
doctors had been given a six to eight year education
that these were miracle drugs. These narcotics should be
used for any kind of pain. Including everyday chronic pain. So, if you’ve got a sore knee,
if you’ve got a bad back, if you’ve got arthritis, you
should be taking opioids. And then there was this
concept of pseudo addiction. In that, when people came
to you, as the doctor, and sought help because
they were addicted, it really wasn’t addiction. It was you were under treating the pain. And therefor, the remedy for
that was to give them more and higher doses. Then there is a question
as to whether the ethicacy of the drug, and whether
limited release or controlled release was really controlled release. There’s arguments about whether or not, and to the extent there was
knowledge of the ability to easily abuse the products. And then you get away
from the manufacturers, and you get into the distribution. In the distribution, anybody that transfers a
narcotic drug in our country, under DEA regulations, has to report to the DEA
where that pill goes. And they’re suppose to report it. And they’re not allowed to ship the pill or fulfill and order that’s suspicious. And if the order is suspicious,
they have the obligation to investigate before they ship. Not ship and then investigate, but investigate before you ship. So, the allegations are, that when you move from
the manufacture world, to the distribution world, that they failed to comply
with their DEA responsibility. In they shipped, and
this is where you start seeing in the press, and the
ArcusDatas been made public, Washington Post did a good
job of putting that stuff out that you get millions
and millions of pills going into communities of
100,000 people, or 10,000 people. Which just, in common sense,
there’s no legitimate reason that a community of 100,000, like Huntington, West
Virginia in Cabell County, should be getting millions
of opioid pills a year. And then, you’ll get to the question, “Well, somebody was prescribing them.” and then you’ve got doctors, and then you’ve got
misuse of prescriptions, and then you’ve got pain pills
or pain mills, or pill mills that were created. And then you get to the last segment, which is the pharmaceutical industry. The dispensers. Walgreens, Walmart, the big pharmacies. Every time anybody in here
goes into their drugstore to get a prescription, you have to give them
some kind of information. Your insurance card or something. They type it in. They pull up all the
information about you. And they know when you
get your prescriptions, who your insurer is, you copay, the last time you got a prescription, how many prescriptions you’ve
had in the last 6 days, 6 months, they’ve got all that information at their fingertips. Yet we see medical records
and pharmaceutical records where the same pharmacy chain was filling 90 day prescriptions for
opioids to the same individual five times a month. So, in one month this person
was getting five times what the prescription rate was. So there’s a whole litany of
actions that sort of piled on. Like in football, you
pile on it’s a penalty. And I think that’s sort
of the theory of the case. And there’s responsibility
at different levels, and there’s different
levels of responsibility. – Let me get us back to– – This is like Rashomon. Everybody has a different perspective. – Let’s look at the real history of this. (audience laughs) – You be the jury. (audience laughs) – I’ll bet on you guys anytime. To be the jury. Pain in this country was
totally undertreated. Fought many many years. This is not the lawyer saying this. This is medical community. There was no really emphasis
on treating chronic pain. There was this development
of this new type of opioid. There was an extended release opioid. Now remember, you have the FDA. FDA has to approve every drug. Including this. You have DEA that sets the standards for how many opioids can
be sold in this country in any year. That’s done by the government,
not by the companies. Companies can’t make more than the government tells them to make. So, what happens? There are warnings. We forget about warnings. Professor Sharpe and I were just talking about warnings this morning. There’s a warning on every
one of these prescriptions. That this is addictive, that
this shouldn’t be misused, that this shouldn’t be crushed, that this shouldn’t be snorted, and everybody knew what they
were doing because there were, everybody in the train, including
the cities, the counties, the states, the federal government, saw what was happening out there. This is not about opioids
that are being prescribed properly and used by patients. This is about opioids
that are being misused and abused by people who
are trying to get high. And what they did was, they did. What Joe says was right. People went to doctors
in their communities. They went to six or seven doctors. They got these pills. What did they do? They sold them. Or they used them themselves to get high. So, we’re not talking,
in the whole, about use. We’re talking about abuse and misuse. And today when you hear 56,000 people, or whatever the number is, die every year from opioid overdoses. Go and look at those numbers. They’re not dying from
prescription opioids today. What, since 2016 or 17,
they’re dying from illegal fentanyl that is coming in from China. And heroin that’s coming in from Mexico. And that’s what’s killing people today. – Respectfully, I just disagree
with that message entirely, but I won’t get into that today. – What a surprise– – I do understand that is surprising. I will say this, in December,
my brother graduated to heroin after 10 years of opioid addiction. Getting pills, first from his
doctor, then when he didn’t have insurance anymore, getting them from people off the street because he was addicted. I do not, as much as I
understand the message, and I respect, and I’ve been going up against
that message for years. But, there’s a undercurrent
of blaming the victims to what you’re saying. It’s just not my experience,
having done this for years. The victims of this epidemic
are not drug seeking junkies. They are high school
students who were injured, and the doctor was taught
that a standard prescription, for oxycodone 30 milligram
pills was a 30 day supply, and he re-ups every single
time and suddenly a year later, that kid is in jail for possession
of heroin, or he’s dead. Those are the victims of this. And to paint the portrait
as anything other than, the people who ended up addicted didn’t intend to get addicted, and were mislead about
the safety of these pills. I cannot disagree with that
stance strongly enough. Again, obviously not surprising. – David? – So, I think now everybody sees that, from what has just been said so far, that there are two different
kinds of worlds here. And a real difficult problem to solve. And the two sides are
really very profound, and kind of simply stated, but it’s very difficult to reconcile them. So, there are 50 million
people every year, who suffer from chronic pain. 50 million. 20 of those people have what’s
called high impact pain. Which means it effects their
activities of daily living. It’s a little jargon, but I
think everybody gets the idea. But to bring it home, these are people, who when they get up in the
morning, they’re in pain. That’s all that’s on the top
of their mind is their pain. Every minute of every waking day, they are in pain. And when they go to sleep, they know that they won’t
be able to sleep well because they’re in pain. And they know that when
they get up in the morning, they will still be in pain. And prescription opioids
today are an essential, the FDA believes, they’re
an essential medication for meeting the needs of these people. Then you have the problem of people who don’t get it by prescription, or they don’t follow the prescription. And, nobody is blaming a
person who takes opioids to solve a pain problem
and becomes addicted. That’s not really the issue today. The issue is what you do about the fact that the addiction then leads them, and it’s a problem, there’s
no question about it, to then take pills not under prescription. And so you got two groups of
people who have an enormous, profound problem. The medication plays a key role, but the medication has risks. And the keyword, that keyword, is balance. Who strikes the balance? Who strikes that balance? And the answer in the United
States today is the FDA. And the FDA, since these
pills came on the market decades ago and more recently, in the 90s when the
undertreatment of the pain was recognized, they absolutely recognized
this undertreatment, they recognized the risk
of addiction and abuse, and they struck a balance. That’s what the FDA is suppose to do. And they approved these
drugs as safe and effective. And they remain safe and effective today. Now, we can go back over those 20 years and find lots of fault. Lots of things to happen that we’re good. But, we come back to this
room, in this building, and the question here. Which is, whether in civil
litigation we’re gonna find a better resolution to
that fundamental problem than what the people at the DEA, the FDA, the state health authorities, what they’ve tried to do
for the last 20 years. Particularly when, as Sheila indicates, prescription opioids have tapered off. Dramatically. But particularly in extended release. Which were only a small
part of the marketplace. Today is a fentanyl problem. It’s a huge problem. The stuff is unbelievably potent. And yet, right in the middle
of this fentanyl crisis all these states, and all these counties, are out saying “Oh we’re
gonna solve the crisis. We’re gonna sue a bunch of people. And dig up what happened 20 years ago, and pretend like there’s illumination for how to solve the problem of today.” That’s a legal problem, and that’s what I think that
we really need to focus on. Has the legal system done well so far, in somehow trying to displace the judgment of independent public health authorities? – [Joe] And I think we got a good history. – [Arthur] So, are we
trying to blame Jonathan and all of his federal friends? Where the hell have you been? – On this point, actually I fully agree. The difference is, the regulators, the agencies who are tasked
with over seeing this were asleep on the job, were incompetent, at best at times, were
absolutely influence by not only political, but
also personal interest in what comes next after
I leave this agency. Because a big law firm or a
big pharmaceutical company is coming and knocking on my door saying, “Well, you’re an expert on this. Why don’t you come and work for us?” And suddenly you have self interest in maybe not bringing as many cases. Maybe not regulating
stiffly as you could have. I think that DEA reacted to this too late. And then, at the height of everything, when DEA started going
higher up the food chain, DEA stopped regulating entirely. And, to say that these experts, that somehow they were independent in viewing this and trying
to solve this problem, is ludicrous. There were so many outside
influences weighing on FDA and DEA. From 1996 through when I left DEA in 2015. You could see it. You could see the slow down happening in the middle of a big crisis. It just happened to coincide with when DEA started going after distributors instead of just taking down bad doctors. Suddenly, there seems to
be a lot more influence on who DEA’s going after, and how often they’re going after people. – Joe, I sense that some
of your panel colleagues, particularly those to the right, which seems appropriate – [Sheila] We’re sitting
in the right spot, right? (laughs) – [Arthur] Are trying to
point fingers elsewhere. – I think that the proof
is in the pudding here. I think Davids got a good point to say, the word balance is something
we should talk about. But I think he is pointing fingers and not reviewing balance. I think the balance is the balance between the rights or corporations to
manufacture and sell products and to make a profit, and the balance of the corporate
responsibility to do so honestly forthright and not
under fraudulent and misconduct. And I think the the juries
are a good place to determine what is the right balance. So, when you get into the
question of the FDA and the DEA. Then you get into politics. Then you get into whose got the money? And what’s gonna happen at the
logic free zone of America? Which is what I call the capital. (audience laughs) And we’ve got a good history here. Because for 20 years, congress did nothing to deal with the tobacco epidemic we had. And the civil justice system
came and started filing suits. To enforce the laws, and enforce
corporate responsibility. And, after about three or
four years of litigation, there was a settlement. And that settlement was
intended to target conduct that was inappropriately
directing cigarette use to kids. And inappropriately using
flavoring and cartoon characters, and things of that nature. And there was a resolution. And since that time, smoking
in our country, among kids, dropped dramatically. And the health rate of
smoking related injuries dropped dramatically. Now, we’ve got this
recent flip on vaping that is probably gonna end up
in another litigation. Whether it’s gonna be against the same tobacco companies or not. – [Sheila] Probably? – [Jonathan] Spoiler, it is. It absolutely is, guys. (audience laughs) – You could have used possibly- (audience laughs) – We’re just a little
busy these days right now. (audience laughs) – I’m sure you’re winding up. (audience laughs) – The B teams at work I promise you. – I mean to the paralegals. – So, it is a question of, what was proper conduct and what was proper
exercise of your right? Proper responsibility. And, we’re gonna have
jurors sitting there, and they’re gonna listen to these stories, and they’re gonna hear
is the FDA let us do it, and the DEA let us do it, they’re gonna hear about
the contributions to political candidates, and how many former DEA
agents, or FDA high officials are in employed in the pharma industry, and what their job was, and
all their email traffic. And one thing this case
is different then tobacco, or asbestos, or most of
the mass torts that we saw before 2000, is technology. There’s been 161 million documents produced in the MDL litigation. The number of emails. And I urge you, if you’re
in an emotional state, or whether you think you’re
having fun with a colleague, be careful what you put in an email. Because someday, somebody’s gonna read it. And you’re not gonna be
happy with what you said. – The one advice I always
give people about emails, is think of your email
before you press send. Read it again. Especially when your hot under the collar. And say, “What would this look 10 feet tall in the court room?” And then you’ll go back
and you’ll rewrite email. And, believe me, the
things you see in emails. – This actually a public document, so I’m not talking out
of school on this one. – Can I ask Joe a question? Is that right? – You can ask me a question. – I was asking Professor. – Wait wait. I thought Joe was going
to give us an anecdote. – I am. There is a series of
emails between a vendor selling opioids, like a pharmacy store, and a high official of marketing
for a distribution company. Where the discussion is, these
pills are flying out of here. We need more pills. They’re flying out like Doritos. They’re flying out, they are addictive. And the marketing director
says, “Oh they are” That is in a series of emails. Flying out like they’re
Doritos, and they’re addictive. – Can I go back? – Well, I forgot the question. Well, I’ll read from the short
question slash statement. So Joe is an unbelievably capable lawyer. He is, among all the people I’ve been– – Stop you don’t have tell him that. (laughs) He’s already got a big enough head. – [David] Joe’s the best. – Sheila, he’s sneaking up on Joe. – No, no, no, no. Sheila completely agrees. Juries. So, the FDA, the DEA, they
have the ability to take scientific evidence, to hold
conferences, to make decisions that are written and are forever. And they are uniform across the country. Everybody has got to
follow what the FDA says. Everybody has got to
follow what the DEA says. So now, we’re gonna take the same issues, these huge issues effecting
millions of people, and I love the jury system,
I’m a huge believer, I have rather have a jury than a judge, but I’d rather have the FDA make decisions about health and safely,
rather than juries. – He called them incompetent. – [Jonathan] At best. I said incompetent at best. – But, I don’t think
when he was at the DEA, he would have called the DEA incompetent. – At the end of my tenure I would have. – [Sheila] Well, then you should
have been a whistle blower. – I was. – Good. – I love it when they talk dirty. – I want to go back to
the legal issue here. The institutional legal issue. Which is, if you actually take a look at the litigation today,
and what’s happening today, and it’s not the first time, this goes back to breast
implants in the 1990s. – We’ve been around for a long time. – Yeah. It’s the same problem. So you got companies. They go from motion practice, to summary judgment in eight months. Everything is decided in this litigation– – Was that your first CLAT
that went in bankruptcy? – What? Oh, I’m going to get to
the bankruptcy in a minute, but juries. So, do they really want these
cases to go to the jury? The answer is no. They don’t want these
cases to go to the jury. So the way that they
assure that that’s true is they come up with theories
like public nuisance. To displace the 50 years of
law on products liability and FDA approval, and what it means. They go that way. They go the way of bellwether trial. So, you’re a company and you’re
facing 12 to 15 jury trials in the space of, say, 12 months. And the damages sought in
each one of those cases take two counties. Just two counties in Ohio. And the MDL case is coming up for trial. They have got statistical models, and that is a gracious
statement about them, to calculate the damages
for those two counties, and the billions and billions of dollars. Now, how many companies
have the wherewithal for the sophistication to from 10 billion, to 5 million, to 50 billion dollar trials all in the space of 12 months? And the answer’s they don’t. And so the real purpose of this, the real purpose, is not to do justice before a jury, that’s simply a tool, it’s a threat, is to get people to pay up. And to pay up, not on the basis of a real recourse to the law,
on the basis to the fact that they cannot, simply
cannot, afford to go through the process. And what’s their recourse? Bankruptcy. There are 93 mass tort
bankruptcies in the last 20 or 30 years, and they’re
happening now with regularity. Is that a jury system? Is that juries doing the work of the FDA? Or is it the jury threat
that does the work of the litigation system? Which is designed simply to produce money. – All right, you folks have now completed
your opening statements. (audience laughs) Thinking about the litigation. Is judge Wood here yet? Okay. Private joke because David just sounded like
one of her colleagues. Remember Rhone-Poulenc and Judge Posner? – Yes, the coercive effect– – It’s an inside joke. – Judge Posner and Rhone-Poulenc. – What are the problems you face? You’ve heard the rhetoric. – What are the problems
defendants face, or plaintiffs? – Plaintiffs, let’s start with plaintiffs. – Well, they don’t have
a good cause of action. (laughs) – I asked Joe, Sheila. Not you. – I think the rulings on the
motions to dismiss throughout the country, pretty much say we do have good causes of action. – That’s not what they say. – There’s a lot of fault to go around. There are causation issues. And when you look at each defendant, there’s different stories to tell. They got in the business
at different times, they did different things. There’s different market shares. And they’re gonna be
empty chairs at a trial. Purdue is now gonna be an empty chair. So, there’s been so much
press and so much discussion about the Purdue and the conduct, and the 2008 criminal plea, et cetera. I’m sure that the
co-defendants now in trial are gonna be saying, “You
were right all along. Purdue is the responsible party. They did this. They started this.” So there’s gonna be causation issues. There’s gonna be legal
issues on whether or not public nuisance is viable cause of action, although it’s been around
for hundreds of years. And the Supreme Court,
within the last year, rejected the cert petition
in the California lead case that they could have taken
if they’d thought that public nuisance was gonna be misused. My firm tried the California lead case, and prevailed against the lead industry on lead pipe poisoning. And it went to the Supreme
Court of California, and they affirmed it. Went to the federal appeals process, and the Supreme Court denied cert. That was in, I think, 2017. So, the theory of public nuisance is they sought a legal theory that’s
been part of our common law and statutory law for hundreds of years. I don’t think it’s going away. RICO was developed to
deal with racketeering and coercive combined conduct. Civil conspiracy is a
civil litigation tool that’s been around. So, I don’t think the causes
of action are problem, but there are gonna be people on jurors, and the defendants are going to argue it’s the bad doctors,
or it’s the fentanyl, or it’s the illegal drugs. And those are issues that we’ll put out. What they can’t run from
is their own documents. And I think that’s where
the difference is gonna be. Is their documents are damning. – How are you getting
through all that stuff? – Not easily. – Not easily. It won’t be either side. I mean, it’s massively
expensive to do mass torts today because of the document production. The cost of a defendant
to go through the emails, 15 years worth of emails, and
15 years worth of documents, and call them out, produce
them, check them for privilege, check them for confidentiality, mark them for business
trade secrets, et cetera. It’s an expensive time consuming process. Once we get them to challenge
all their inappropriate designations of
confidentiality, et cetera. And to put them all together. We don’t get them in
nice neat chronological order by subject matter. They shuffle the deck. I guess it’s fair. So, we then have hundreds of lawyers, that have spent thousands of hours, just doing nothing but
going through documents and coding them. Then you have to have
electronic search tools. So, in mass torts today
the discovery process, and the electronic search process, has made the costs just astronomical. For both sides. – Sheila, what are your obstacles? And don’t say “none”. – Well of course there are obstacles. That’s why we’re using
bankruptcy as a settlement tool. It’s just the mass nature of it. No company can, except a huge company, can fight 2,000 plus lawsuits
in state or federal court with state agencies and
cities and counties. And if you try five cases, and you win, you’ve got 2,000 cases left, and sooner or later you’re going to lose. And the number are staggering
that the plaintiffs are getting back. So, Joe’s right. Just in producing documents it is an incredibly mass
hundreds, millions and millions, and millions of dollars are just spent on trying to get the emails. This is in every large litigation now. Because there are so many emails, and you gotta go through them all. From all the people that had
anything that touched anything. So, that’s a real problem. But the issue here is really causation. Just think about what’s happening. The plaintiffs allege
that the manufacturers miss represented, to who? Doctors. You never start
advertisement for an opioid. You can’t advertise opioids. So this is not a pharmaceutical drug, where you’re watching on t.v., go to your doctor and ask
your doctor for a drug. This goes to doctors. Any detailing, they call it detailing, and all pharmaceutical drugs,
are detailed to doctors. People come in, talk to doctors, especially are gonna tell
them what the product does. They have to follow certain instructions that the FDA requires. You have to leave certain materials. You have to talk about the risks. You have to talk about the benefits. So, are there any doctors in these cases that are being called? They say my client
misrepresented to doctors. Well, they don’t call a doctor. In an individual case, if you said there was a
person who took your drug, and you misrepresented to the doctor the benefits or risks of the drug. You gotta bring the doctor in, right? There not doctors here. And in fact, we take
depositions of doctors, from time to time. They find, they know all about the
addictive qualities of opioids. You’d have to be under a rock. Everybody knows opioids addictive. So, there’s a causation issue. This is all new guys. Cities and counties are suing. Thousands of cities
and counties are suing. State AGs are suing. There was a great deal of
issues that are happening now. In the sixth circuit,
there’s a mandamus petition of whether cities and counties in Ohio even have a right to
bring a cause of action. Because only the sate AG
has the right to bring the cause of action. And there’s a mandamus
in the sixth circuit. Yesterday the sixth circuit
asked the plaintiffs and the judge to respond to the mandamus. From the Ohio AG. So, there’s a lot of real issues. Who does this cause of action belong to? Who has standing to bring it? The AGs? They’re bringing it for all
the people of the state? Well the cities and counties. They say, “Well we have separate damages.” And, in public nuisance? This is about abatement. This is not about past damages, perhaps. Maybe abatement in the future. What are we abating? So, there are some really
important, legal issues that are gonna have to be
decided by appellate courts. They have to trials. Because that’s the only where
it’s gonna get sorted out. – Sheila, are you afraid of juries? – No. It really concerns me when I see lawyers asking for judge trials
on public nuisance, when they’re plaintiffs’ lawyers. Have you ever plaintiffs’ lawyer, asking for a judge to try the case? Rather than a jury? That bothers me more than
the fact of going to a jury. I think it’s a very hard case for a defendant to try in front of a jury. Because of all of the mass
publicity that has gone on already in these cases. And you can’t tell U.S. people,
have you read about this? Do you about this? Everybody knows about the opioid epidemic. So, it’s hard cases to try. But I hope we’re gonna try some. My client won’t. – You’ll be there in spirit. – I’ve tried mass tort cases
for over 35 years to juries. And, I’m an enormous
believer in the system. Juries have the ability
to cut through complexity, and bring common sense. But the principle virtue, of
a jury, is it’s 12 people. Not one. And there only job is to decide the case. They don’t have to decide what happens to the future of the world. They have to decide the
case in front of them. I’m an enormous believer. I’ve tried very difficult cases, some of the cases we’re
talking about here, before juries. And, we’ve met with some success. The problem though is, that
no jury trial is better than the law, and the
instructions, and the rulings from the court make it. And the real problem here, and it’s not just opioids,
it’s a problem with mass torts. I mean, over 50% of the
claims, individual claims, that are now pending in
federal court, are tort cases. Why does that happen? Because there’ve been huge
increase in the number of mass tort claims. So you see, you know, testosterone. I was involved in the
testosterone litigation. See all kinds of fairly
well accepted, commonly used medications, that are now
the subjects of mass tort personal injury claims. – Talcum powder. – What? – Talcum powder. – Talcum powder’s another one. Will be interesting wrinkles,
but yes, talcum powder. Roundup. Roundups been on the market for 40 years. The EPA just said, “I’m sorry. It’s not carcinogenic.” But we’ve got cases all over the country, and we got jury trials. The difficulty is that
in this particular case, and it’s not unique, but
in other cases as well, there’s enormous pressure. And there’s a solution to it. There’s enormous on the MDL judges, or any judges who have
got a number of cases, to get to a settlement. – We have a lot of people
here who are not lawyers. Tell them what an MDL is. – So, an MDL is Multi District Litigation. So, it’s a fabulous,
fabulous, idea and tool. And what this involves is that every case, that’s in federal court that involves essentially the same issues, can be consolidated before
one judge and one court. All over the United States. And that decision’s made
by a panel of judges. Very high quality,
sophisticated panel of judges. So they end up before one judge. So now, the MDL judge has the
authority and responsibility to deal with all pretrial matters. In that case, and all the
cases, on a consolidated one time bases. So, over 50% of the claims
in the federal court are personal injury claims. Largely, overwhelmingly, an MDL. So, what does that judge want to do? He wants to get, or she
wants to get, resolution. She wants to get, or he
wants to get, a settlement. And it’s become a conventional
common practice today for judges in MDLs to,
basically encourage, a very prompt pretrial process. And then set up these bellwether trials. Why? Because everybody knows that
when you get a lot of trials maybe you get settlements. Well one things that’s be
sacrificed in the process is that his whole litigation
is now going to be, essentially, tried and or settled through this bellwether process. It’s generally the way that it works. Well, the problem is
that there is no appeal. There is no appeal from
all those pretrial rulings. Unless the MDL judge
decides to certify matters to the court of appeals. Which, incidentally, holds up the process. So, there is no provision for it. – You can always take mandamus. Aren’t there mandamuses
in the sixth circuit today about Judge Polster?
– Everyday. There’s been several mandamuses filed. – But I don’t that think
that anybody would say that we ought to have mandamus
built in this mechanism. So now it’s time to think
about how interlocutory rulings before the gantlet comes into place. To take issues like public nuisance. Where the fact of FDA approval, the fact of doctors, as Sheila indicates. All that gets obliterated,
because you treat it like, and lead is nothing like
pharmaceutical products, property damage. Public nuisance is a property damage idea. And it’s strict liability, essentially. You do something on your property
that hurts mine, you pay. Period. There’s no role for the doctor. There’s no role for the patient. We just have count
models that calculate up how much the damage is. And all of the complexity
that’s built in to products liability law,
over the last 50 years, is obliterated. In favor of public nuisance. And that’s what the
plaintiffs want to try. They don’t want to try the doctor. They don’t want to try any of that. Just want to say “You put
this product over the border into our state, or our county pay up. Here’s the statistical model that proves how much
it’s gonna cost to fix.” – We’re gonna to trial
on civil conspiracy. We’re gonna to trial on RICO. And we’re gonna to trial
on public nuisance. All causes of action. We wanted to go to trial on damages, but the court wanted us to
narrow to three causes of action. So those are the ones we picked. These cases are about damages. – Okay, let me back up
and put it in perspective. Again, for the normal people in the room. Who are not lawyers. You got all of this federal stuff put into Cleveland, Ohio. Before a judge. Who had a pretty good procedure course when he was in law school. Because he was my student. So I vouch for him.
– Now I know who to blame. (audience laughs) – Now, let’s notice couple of things. Number one, it’s only
the federal cases, right? It’s not the state cases. Number two, in theory, it’s
only for pretrial purposes. But now, as David properly points out, the culture of MDL litigation is to produce these
things called bellwethers. You may recall a bellwether
is a sheep leading the flock. Now, you can say that’s a good thing. You can say it’s a bad thing. You can say he shouldn’t do
it or she shouldn’t do it because it was only sent to
you for pretrial purposes. Or you can say, as David
did, the objective is to get a global settlement for
the rest of the cases. So you got these two. Is it two bellwethers up
in the sixth circuit now? – [Sheila] There’s one case. Two counties. – Summit and Cuyohoga counties
are the two plaintiffs in the bellwether trial. – Are they gonna go to trial? – Yes. – When are they gonna go to trial? – October 26th? – First. – So, that’s pretty close. – Yes, around the corner. – Everybody ready? – Nobody’s ready. – Nobody’s ready. Sounds like my class. Nobody’s prepared. – How long will it take? Let’s assume that case goes to trial. Goes to verdict. There’s then post trial
motions that goes on appeal. By the time that appeal is resolved, how many other bellwether cases will have been put up for trial? Let’s assume it’s resolved in 18 months. The answer is almost the
entire bellwether docket, that’s currently set, both in state and in federal
court trials every month, will already have passed. How many companies are gonna be around, at that point in time
without having settled, before the first appellate court gets to pass on the issues in the case. And the answer is, if all goes well for
the plaintiff’s effort, and there’s no blame, none
of them will be around. Or maybe one or two. Maybe Johnson and Johnson
will have weathered the storm. Everybody else is gonna be out. Then there may be more bankruptcies. We don’t know. – Joe, he’s saying that
you’re sewing the seeds of the destruction of American capitalism. – [Sheila] No, he’s creating it. – It’s destruction of the law
being applied consistently, and taking a little bit of time to have courts of appeals
pass on these issues. Maybe even having an
amendment to the rules. Which the rules committee
has been considering for, God knows how long. That says we should get
interlocutory appeals in MDLs. Because then you can get
guidance before you go down the path of trying all these cases. Why not found whether
public nuisance is viable? Why not find out if
RICO should be applied? RICO and the tobacco litigation, huge jurisprudence that says you can’t do what’s being
done with RICO in these cases. And yet, the whole earning
of the tobacco litigation, which took years and had
multiple federal decisions saying you gotta prove
causation the old fashion way. For some reason, we don’t
have that now in opioids. – We filed the first tobacco
case in 94 and settled in 98. – Yeah, and first of all
it was against 50 years of trying cases. And there were trials that
took place in that litigation. Then and thereafter. – Other processes are pretty slow. Look, Jonathan fooled around
for 20 years, and did nothing. (laughs) – If you can solve tobacco
in four years, that’s great. – Let’s talk about the
multi district litigation. And David identifies issues
that the defendants raise. I think defendants use the
multi district litigation as offensive tool to slow down litigation. And they’re attempting
to continue to do that. I think that many times
people support transferring cases to the MDL to early. I believe the opioid MDL
was created to early. I think if the federal district
courts around the country had kept the cases until
they got through the motions to dismiss, which is generally
in the early part of a case, then there may have been
some inconsistent rulings, and we may have had a dispute. But right now we got no
legal dispute because all the rulings have been consistent, both in state and federal court. Except for two Attorney General actions in North Dakota and Connecticut. – No, Connecticut was the
media’s polities, but close. – Okay. Connecticut the home of Purdue. – Right. – Said that you couldn’t
sue Purdue for this. – Don’t be bitter, Joe. – I’m not bitter. – It’s only Connecticut. You got 49 other states.
– I know. I don’t need them. (laughs) – It like unanimous. – But I think that the MDL
process is a good process at the right time. But I do think that mass torts, sometimes the MDL has been
used to to creating mass tort, versus to resolve a mass tort. And I have spoken at MDL
conferences, and to MDL judges. And said, “Be cautious of quickly
transferring cases to one place. Because it centralizes, yes,
but it gives opportunity to slow walk it. And it limits the
rulings that you can get. Cause one judge can only handle so much.” So, a month before the MDL petition was filed in the opioid case,
I spoke at an AHA conference and my topic was to MDL or not to MDL. And I said, “Absolutely do
not MDL this case right now. It will be the worst thing
that can happen to us to find out how the case really looks.” – Well something of the plaintiffs move– – They move. You’re right. Plaintiffs move far in
the industry join 100%. And then they limited
themselves to one judge and one jurisdiction in the MDL process. They knew that when
they asked for the MDL. – Can I raise another issue
which I think is interesting and important to this audience? That is that the judge has approved something close to your heart, Arthur. And that is– – I have no heart. (laughs) – Whatever’s in the place of your heart. A negotiating class. – Yes, yes. – I knew you wanted me to raise that. – No, no. I’m glad you did. I was going to. – It’s Sam, the audience knows has been involved in
this from the beginning. A part of the problem
in settling these cases is the fact that there are 23,000 or more, cities and counties. And there are over 2,000 in the MDL. But how do you get closure? The defendants, if you’re going to settle, you want to have a global resolution and you want to be done
with the litigation. And there doesn’t seem to have a reason, a procedural basis in
the class action toolbox. That fits this. We’ve examined it,
plaintiffs and defendants, over a long period of time. No one was happy with 23. I hate 23. They’re the kinds of things
that can mandatory class action and you don’t have to have opt outs. And I think defendants were
very concerned that if you had a 23(b)(3) opt out class. That there would be many
opt outs, or enough opt outs that you couldn’t get global resolution. And there would have to
be a second negotiation. So, a lot of legal minds,
in the class action field, came together, and a number of meetings and thought processes. And arising out of that was
something that is not approved by the rules committee. Or, for that matter, any committee. And it’s called a negotiating class. And it takes a little from
here and a little from there and it says that you can have
a 23(b)(3) opt out class, but if 75% of the class votes
in favor of a settlement that would bind the other 25%. And you have to decide, before you know if there’s any settlement, whether you’re in and out
of this sort of process. So it takes a little from bankruptcy, a little from Sam’s works
on aggregate liability for the ALI. And there is this negotiating class. It’s been preliminary approved. Notice will go out. Or has gone out already? – Gone out. – Notice has gone out. – Notices went out this week. – And we will see what happens. And there is now a 23(f)
petition that is either going to be filed or will be filed
in the sixth circuit. – Of course, of course. And that’ll take how many months? – Two of them. – [Audience Member] There
are two of them, yes. – Two of them. – [Sheila] They filed them yesterday? – Yes. One was filed last night and the other one filed this morning. – I guess I didn’t get my emails yet. – So, the class is a little different than Sheila described
it, it in one concept. The class recognized that
there’s roughly 3,000 municipalities that have filed suit. Both in state and federal court. And then there’s 30 plus
thousand that have not. So, in order to get approval, you have to two separate votes. You have the vote of
the litigating parties that have to approve, and you have the vote
of the non litigating. So neither side can override
the other enforce and issue. So there is that additional
protection in there. It is a novel approach. My role in the MDL is I’m involved in most of
the resolution discussions. And it was a big problem
that the defendant said, “Joe, how can you give us closure? You want us to pay all this money, but then we settle the
26 hundred federal cases we’re gonna get 26 hundred more.” And that’s a legitimate question. I’m not sure it’s true
that that would happen. Because if those people intended to sue, I’m not sure they wouldn’t
have already done so. And then by delaying there’s
all kinds of issues get raised. But, it was a tool that they wanted. And the only thing that
we could come up with is to create a mechanism to
provide some level of assurance. That if the deal was fair,
the people are prepared to speak together and to take it. But the question of whether
or not the deal is fair is the second question that
would be presented to the class. So, all the class does is
create a voting mechanism to approve each individual
settlement, one at a time. And you can approve one
and reject the other. There is no cram down. And the theory is, if 75%, we use that because it’s
a rule in bankruptcy in a special legislative
provision for asbestos litigation, that if 75% of the people,
by volume and value, support it, it’s probably
the right thing to do. – You think you can get that? 75%? – [David] Sure. – You just sound as if
you’re impeaching somebody. – No, no, it’s 75. Look, I will say I think that
Sam and others have done a very sophisticated, and really
excellent job of putting together this kind of proposal. It shows a lot of imagination. It’s not under rules. Maybe it’ll become part of the rules. But of all that I would say, to bring this back to the real benchmark, which is what’s fair? Is that if you do something like that, you empower the people in a huge way, who have the bulk of the cases because they’ll have
the bulk of the votes. And so, you’ll get the 75%. Because there are relatively
small number of lawyers who have the skill, the
wherewithal, and the profile and brand to be able to get this. So, as you think about that, which I think is a very interesting idea, you still have to come
back to the question. Well, what assures fairness? And fairness is not the 75% that’s voting. Indeed, that 75% will give
them enormous leverage in the settlement. Because what is it they
now have to negotiate with? They got closure. Nothing will be more
valuable to the defendants than closure. That’s when the dollars go up. So, this is an interesting idea. But you then have to say, “What’s the benchmark for a settlement?” And I’ll go to another
interlocutor many years ago, who asked a question, he’s almost as good as you are, Arthur. And that’s Ken Feinberg. And this was at the Georgetown conference. Use to have those in the 90s. And the question on the floor was, “How do you tell whether
a settlement is fair?” And, of course, everybody
when they have a settlement they’ll all say, “Well, I
think it’s here for x-y-z” But in our system, there’s
only one real determinate of whether a settlement is fair. And that is whether the
people who are settling actually do have recourse
to a litigation process that’s got the wherewithal
to do what needs to be done. That assures the people have
a choice when they settle. You get to litigate or you get to settle. And if they got the choice to litigate, and on a meaningful basis
that is accessible to them, that’s the best determinate of fairness. So, this does not solve. This solves a problem. But it doesn’t solve the problem that we’ve been talking about today. – Jonathan, I may be
wrong, but your name is not on the brief submitted to the judge. On this negotiation class. – That’s correct. My name is not. – What’s your impression? As a theoretical outsider. – So, there’s two parts of this. And the first is, and I agree with my
colleagues up here entirely. We’re breaking new ground. And we’re looking for fairness. This is a novel idea. No one’s ever done anything like this. And starting from the only way that settlement is even
possible, is with closure. I completely agree. Closure is what has to occur. You can’t have more potential
lawsuits hanging out there. But, also, it’s one of
the most complicated ideas to express from one lawyer to another, let alone to express to my clients, who are not lawyers. To understand exactly how this works. To understand the nuts and bolts of it. It’s either really dressed up, and impressing me by being so dressed up, or it’s really really
impressive and well written and well thought through. And I’m absolutely certain that this is a really well thought out idea. But, I completely agree on the one hand, that because this is new it’s not easy to hang your hat on it. It’s not. And I represent some clients
who have filed in state court. And we are looped in on that process through the head of our group. And who worked with the MDL team. At least to understand what’s
going on and everything. And passing that on. So, we feel that we have a voice in it. And it’s thinking of our interest as well. And this is a point that I
was going to make earlier. It seems like we all have bought in. It seems like we all want
to go in this direction. This is the best solution. Yet, systematically it’s
questioned by defense counsel. The process is questioned. The fairness of this is questioned. The MDL process is questioned. Because at the end of the day, while we’re on the plaintiff
side trying to tell a story, and try to help and fix
a systematic problem, at the end of the day it
seems that the defendants are marching in line with this. But, at the same time,
they want that freedom to question the system, so that they can then
appeal the entire thing. They’re not voicing that right now. When they have the opportunity. They didn’t voice, for instance, that they felt that maybe
the judge coming out and proposing settlement,
right out of the gate, with this MDL, that
that issue wasn’t raised until further down the line when things didn’t seem
to be going their way. I think that that’s really, for me the sticking point on all this, is if people are fully against it, I want to hear why and I
want to hear right now. And instead, we’re all agreeing to this very complicated thing. And then people will complain later. – That’s not true. I mean, some of the defendants
did object immediately. They put in briefs. The AGs objected immediately. Put in briefs. So it’s very clear, right from the beginning of this action, who was for it and who was against it. And I think if I’m a betting person, I think the sixth circuit
may take this and the 23(f). Because it’s so unusual. And I think they need to do it. If they do it sooner than later, I think that will give
more solace to people that this would work or not work. I think otherwise you’re gonna have a very drawn out affair. And until there’s a settlement, and then if someone
objects to it it goes up, you’re not gonna know the
answer to the question. – And you’re probably gonna
say in all the litigation should be stayed while that
goes up for the next two years. – I’m not saying anything. I’m not in the litigation anymore. – You’re so cynical, Joe. – So, while this is a novel approach– – Joe’s name is on the
request for his certification. – And my name’s also
on as class council in Georgine and Amchem that went
to the U.S. Supreme Court. That were also novel approaches in creating rule 23 class settlements. And those both were rejected, but rejected for different reasons. But the tool has been
approved and accepted. So, we do have rule 23
class action settlements, as settlement classes. It’s a tool that’s been used. We use it successfully in BP. – Pretty controversial, but yes. – But, Joe is right. Apropos of something you said, David. The rule itself, which
I’ve read once or twice, does not provide for settlement classes. – You’ll have to see. So we have a ninth circuit
decision in the Hyundai case. With a very strong decent
that talks about Amcan. You have the third circuit
that approved the NFL case. Applied the requirements for
rule 23 to a settlement class. So, it kind of does the fact that a settlement really
make a difference. But that issue really
has yet to percolate up. Which is, under the existing rule– – Except the Supreme Court
didn’t take the BP sur petition. – Well, that was for a variety of reasons. – Yeah, it didn’t have any merit. – So I will go back to– – I want closure. Unless you have a really
significant footnote at this point. – I do have one. And I hope you deem it
significant after the fact. – Why am I not surprised. Go ahead, Joe. – David said earlier that this
case wasn’t about damages, but what is at the heart of this case is the economic destruction
in main street United States, that this opioid epidemic has caused. And the reason that you’ve
got 26 hundred or 3,000 municipalities that have
stepped out filed suit, the first case was filed in
2014 by Santa Clara county on behalf of a number of
California municipalities and counties. In 2015 a city Chicago filed. And they work with four or five cases until we get into 2016. And then there weren’t any
Attorney General access, until we get into 2016 time frame. And what happened is, people
in the small town of America were having to make decisions
about whether to hire school teacher, to put
in the elementary school, or hire another police
officer to put in the jail because they were having so
much opioid related crime, addiction, deaths. They were having to
increase their budget twice for the morgue. Because the economics were
falling on small town America. And when you’re a business, a corporation, thinking about relocating a plant, and you go and you look
at different places. And you got options, and
you pick up the newspaper while you’re there to meet with the mayor, and it talks about three more
overdoes deaths last night, or five robberies for this. That impacts whether you’re gonna decide to go to that community or not. So these municipalities has no choice, but to come forward and say, “We have to have help to address this. Before we destroy small town America.” So this case is about economics. It’s about economics on main street. And it’s about economics and damages. It just so happens this
first case is saying, “We’re gonna focus on
getting money to help abate the problem. To stop it from growing.” We still have the issue of
how to rebuild these towns and these communities. And how to deal with the
absence of enough foster care to deal with NAS babies, and all that. So these cases are about damages as well. – It was mentioned before. I’ll mention it again. There is a series of articles
in the Washington Post that does a brilliant job
of showing the demography of opioid impact in the United States. If you’re interested in this subject, it’s well worth reading. Now, I want closure. From you. It’s their turn. Questions? Questions? Comments? Observations? No hard objects. You’re very agitated about this. – [Jennifer] Hi, thanks
to you in the panel. My name is Jennifer Oliva. I’m an Associate Professor
of law at Seton Hall. I represent the Amici Curiae
American Public Health and Medicine Scholars on the MDL. One of the things that
wasn’t discussed today was how impactful the
tobacco settlement was in so far as the release of documents. Many people agree, including my client, that it wasn’t the money
that had a huge impact on tobacco cessation. Because most of the states spent the money on capital projects, and other things. They didn’t spend the money
on tobacco cessation measures. The southern states, in fact, spent the majority of their
money on tobacco subsidies. So my question, I guess,
is really directed at Joe. And anyone else in the panel
that wants to answer it. Have you read a briefs, and are you negotiating
to get those documents out into the public so it’s transparent? And mimics the positive
effects of the settlement in the tobacco litigation? – There were two things
when we were negotiating the tobacco settlement that became fundamentally key elements
for the Attorney Generals that were at the
negotiating table with me. And number one was the
release of the documents. And they would not
settle for the economics without the release of the documents. And the second was little
bit more controversial. Is they wanted to create a fund, that they knew was gonna
be used for education. And that’s where the truth
initiative came from. And it was controversial because generally Attorney
Generals take the position that they have authority to
bring money into the state by way of litigation. But they don’t have authority
to appropriate funds. So the fact that some of the money was, I think it was 300 million
dollars but I’m not sure, was set aside was a key element. The fact that the tobacco money
did not get used to address the tobacco problem is one
of the principle reasons we have this litigation today. That is being pursued by
the municipalities level. Because they do want to
insist that the money only be used only opioid epidemic. I’ll give the Attorney
Generals credit here because most of the
Attorney Generals agree this is a different kind of case, and the money should be used
to address the epidemic. There is a dispute as to who
should control what that means. But that’s it. – Let me respond– – Wait a minute, let me finish. – Oh okay. Thought you were
– But absolutely. Never. Absolutely, transparency is
a key element here as well. Because how we got into this
mess, how the system failed, and if there was
manipulation of the system. We need to disclose that
it doesn’t happen again. And I think that Sheila will tell you, that in the discussions that
we’ve had with her client, getting transparency on the documents, and making them publicly
available is a key element, yes. – Let me just answer. I did read your proof, by the way. I thought it was very interesting. Joe did say he read it,
but that’s all right. (laughs) Because I know he didn’t. But, I did. – I was a little busy reading all your mandatements petitions. – I do that too. Let me just say, from my clients position. We are not, and have not, and will not, enter into an agreement of settlement where the money goes
into general treasuries of cities or states. If you’ll follow our
settlement in Oklahoma, we insisted, and the AG agreed, that the money went into a foundation. University of Oklahoma. State University of Oklahoma. To be used in a foundation for treatment, and for research, and for education. And the bulk of the money
went for that purpose. And in any other settlements, and by the way another
footnote to history, when we did that settlement
it got completed. Very soon thereafter,
the Oklahoma Legislature passed legislation that
that can’t happen again. That any settlements have to
go into the public treasury. So, this is a lot of politics. Maybe you ought to put your efforts with the political people that
don’t want this to happen. That don’t want it to
go to the right places. For treatment, for
education, for research. And put your pressure there. Because the politicians want the money for their own purposes in many places. So, we’re committed to that. This company has been
committed to any settlement being all used for the right purposes. For the purposes of
dealing with addiction. – Questions? – [audience member] In
the opening remarks, I believe there was mention
of the various defendants across the opioid supply chain. And how there will be
varying levels of culpability and liability ultimately. And I was wondering if
maybe you could elaborate us to how you see the that
the respective culpability or liability across
those various categories. – I will answer that by referring back. But I’m not answer it
directly to the opioid case. Because I think it borderlines
on some things I’m not suppose to talk about. In the asbestos litigation in 1982, Johns Manville filed bankruptcy. And they had 16,000
cases filed against them when they filed. And they said it was
an overwhelming burden. And they filed for bankruptcy. At that time there were
probably seven or eight, maybe nine additional defendants
in the asbestos world. As lawyers start working
harder, and digging more, and learning more about the facts, and learning more about what
had happened over the years, you started seeing more defendants. And now I think there’s
probably at least 100 corporations that are sometime regional, sometime national. That at one time or another
who’d been involved in the asbestos litigation. This is a massive problem. It’s a problem that’s gonna
with us for a long time. So, I expect that there’s gonna
continue to be information come to light about what one corporation may or may not have done right or wrong. And it would not surprise
me to see the additional parties in segments of
the industry involved in this litigation before it’s over with. – And Sheila, I won’t
tell you who they are so you can go get them. (laughs) – Too busy.
– But I think you know. – Go ahead. – You know very much appreciate
that each one of you is very knowledgeable. What it appear is that you
guys are just hiding behind procedure. The real issue here is results
when the financial crisis, that we have prioritized the profits. And we want to socialize the loses. Just to give you an idea. We hear that the public, I have no dog in the hunt over here, I have just your great
Professor Miller said. The publicly available information, some of the emails that have
come out from the Sacklers. They’re devastating. If those are true and
actual deed of order. – Name one. What do you think, after you
read that, was devastating? – Basically acknowledging
that we know what this product does. – Everybody knows what the product does. – But we have to keep on
pumping to make the profit. These are publicly available information. And I’m not taking any sides. But look over here even in the panel. The bankruptcy has been filed. By Purdue. And they want to shield the Sacklers. Now the bankruptcy, what I
have done, what I have seen. There’s no such thing to
protect a shareholder from that. What I’m basically saying is, that right now we hear
there’s a lot of discussion how to make the case. As if they are just innocent victims. But, profits have been made. And now if you see, that
even attempts were made, by the Sacklers to rake
some of that money out. Which the New York has done. So, the important thing over here is, there is a huge public policy crisis. And what we heard over here is
“Oh gee, there was an empire” But when the empire is not neutral. When the empire is conflicted. The same way it happened
in the financial crisis. – All right. Is there a question? – No, no, no. The question over here is
that we want to socialize the losses and we want
to privatize the profits. And I think that’s the real issue we hear. The profits have been made
and people don’t want to basically use that money
and mess these things up. So the damage should basically dissolve. – I think I understand the question. It’s an interesting and
it’s a good question. The purpose of the judicial
system is nothing to do with socialization of causes. The purpose of the judicial
system, on civil side, is to determine what should
be paid by private parties, under the law. And that’s what we’re all here about. Now, the Prudue case is
gone into bankruptcy. And bankruptcy doesn’t displace the law, it doesn’t displace responsibility, it doesn’t displace any of that. All that it does is to centralize everything before one court. And in that court
liabilities get determined, responsibility gets determined. Bankruptcy process is
a critical process for resolving cases like this. That’s why I mentioned earlier, there are over 90 mass
tort bankruptcies that have been filed. Not just asbestos, but
pharmaceutical products in otherwise. And as to the Sackler families. And I represent one of the families. The Dr. Raymond Sackler family. The same applies to them. They’re part of the bankruptcy. Their responsibilities get determined. And one of the things the bankruptcy does, is it provides closure. So that, whatever
liabilities are determined, they can be determined and
then responsible parties pay. And the idea of including the Sacklers is nothing that’s novel. I’ve represented third
parties that have been share holders, or
entities, parent entities. It is a standard part of
the bankruptcy process. That in order to get all parties that have some involvement
in the liability that drives the bankruptcy in one place, you bring the third parties in. And guess what they have to do
if they want to get closure? They have to pay for that closure. So, nobody’s hiding. Nobody’s trying to get a shield. Everybody wants to have a
place where we can get closure on a fair and lawful basis. – I think, just briefly,
this speaks to something that this opioid litigation
is a response to. And whether or not this could
have been handled through government agencies. It wasn’t. This lawsuit, the
undercurrent of all of it, from every client I represent, is anger. Is anger and accountability. And yes, it becomes about money. And yes, there are bankruptcies. And yes, some of the documents
that come across our desks will not see the light of day. That’s the nature of this. But I think, at least,
I can speak for myself and I hopefully for the
other plaintiff’s attorneys, we are angry and we’re
trying hard to make sure that that voice is heard. That it’s not just a shuffling
and exchange of a check. And then the whole things done. There’s been so much
coverage of this problem from the very beginning. Because everyone in this country is affected by this directly. And though that’s not
answering your question. I just want to make sure
that that’s part of what you’re saying. And that’s part of what everyone’s saying. That’s why we want to
get those documents out. That’s why we want this recovery. That’s why the ARCOS information
from DEA being published was so important. (sighs) – Well, time is pretty much expired. And I lived through, I
participated in, asbestos. And I lived through and
participated through tobacco. It’s a slough. It is an incredible slough. And as some of the comments indicate, you hope you come out better from a societal point of view. On the other side. But having watched a bad
movie three times now, I fear that there’ll be a fourth bad movie at some point in your lives. Not for me. All right, you have a break. I wanted to give you an
upbeat note before we went to break. (audience laughs and applauds) My thanks to them.

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