Chapter 38
Cleveland, January 2018
On the morning of January 9, Judge Polster summoned nearly two hundred defense and plaintiffs’ attorneys in the opioid litigation to his wood-paneled courtroom, its windows covered with heavy, teal-colored draperies, to hear an urgent request. Put aside your differences, the judge told them, and settle the case for the sake of the country. The lawyers sat shoulder-to-shoulder in the eighteenth-floor courtroom in the Carl B. Stokes U.S. Courthouse, an imposing skyscraper of gleaming concrete and glass, the fourth-tallest courthouse in the country. It is named for the first Black mayor of a major American city. Polster alternated between cajoling, chastising, and ultimately warning the lawyers against turning the litigation into an all-out legal battle. No one would win, he said, particularly the public.
There was too much at stake. Too many people were dying. Too many people could not find treatment. Too many communities were suffering from the worst drug epidemic in American history. Polster was relentless as he upbraided the lawyers, perhaps because he knew his words would not appear in any news reports. He had barred the press from attending the first hearing of the MDL. He called it a “settlement conference,” not a hearing, and he believed he had every right to conduct it behind closed doors.
Polster began his meeting by noting that the MDL created to handle the opioid cases was unique. Usually, multidistrict litigations address a past wrong—the parties figure out how it happened and who should be held responsible.
The opposite was taking place now, he said. “What’s happening in our country with the opioid crisis is present and ongoing,” he noted. “I did a little math. Since we’re losing more than 50,000 of our citizens every year, about 150 Americans are going to die today, just today, while we’re meeting.
“And in my humble opinion, everyone shares some of the responsibility, and no one has done enough to abate it. That includes the manufacturers, the distributors, the pharmacies, the doctors, the federal government and state government, local governments, hospitals, third-party payors, and individuals. Just about everyone we’ve got on both sides of the equation in this case.”
The lawyers sat in stunned silence.
“I don’t think anyone in the country is interested in a whole lot of finger-pointing at this point, and I’m not either. People aren’t interested in depositions, and discovery, and trials. People aren’t interested in figuring out the answer to interesting legal questions,” Polster continued. “So my objective is to do something meaningful to abate this crisis and to do it in 2018.
“And we have here—we’ve got all the lawyers. I can get the parties, and I can involve the states. So, we’ll have everyone who is in a position to do it. And with all of these smart people here and their clients, I’m confident we can do something to dramatically reduce the number of opioids that are being disseminated, manufactured, and distributed. Just dramatically reduce the quantity, and make sure that the pills that are manufactured and distributed go to the right people and no one else, and that there be an effective system in place to monitor the delivery and distribution, and if there’s a problem, to immediately address it and to make sure that those pills are prescribed only when there’s an appropriate diagnosis, and that we get some amount of money to the government agencies for treatment.
“Because sadly, every day more and more people are being addicted, and they need treatment.”
Paul Farrell couldn’t believe what he was hearing. He looked around the crowded courtroom at “all these lawyers with buckles on their shoes.” They were mostly trial attorneys, not negotiators, and they were among the finest in the country. No one was ready to concede a thing. Why would drug company executives and their lawyers suddenly surrender and voluntarily pay out billions in damages, after repeatedly denying that they played any role in the epidemic? It didn’t make much sense, and he couldn’t imagine that anyone in the courtroom would bend to the judge’s will.
Paul didn’t know that the epidemic also was deeply personal for Polster. The judge had grown up in Cleveland, a city ravaged by opioids, addiction, and death. One of his friends had lost a daughter.
Outside of work, Polster tutored a third-grader at a nearby elementary school and taught mediation at the Cleveland-Marshall College of Law. As a member of two Jewish congregations, he led a confirmation class on ethical decision making. A former assistant U.S. attorney in Cleveland before President Clinton named him to the federal bench in 1998, Polster cared deeply about his city and wanted the devastation of his community and so many others around the country to stop.
Polster told the lawyers that the alternative to settling was protracted, expensive, uncertain, and bruising litigation. If that’s what they wanted, he acknowledged, there was little he could do to stand in their way, but he reminded them he wasn’t powerless.
“If I’ve got to do it in a traditional way—and I guess I’ll have no choice—I’ll admit failure and I’ll say, ‘All right. We’ve just got to plow through this, and, you know, if we can’t accomplish something like what I’ve talked about then, you know, I’ll talk to everyone,’” he said. “I’ll turn the plaintiffs loose on the defendants; I’ll turn the defendants loose on the plaintiffs. You’ll, you know, tear each other up way down in 2018 for discovery. You can go after the federal government, full discovery there, too. You know, FDA, DEA, have at it, and in 2019, I’ll try the Ohio case myself and see what happens, after dealing with whatever motions, and I’m sure some of the claims and theories are going to be knocked out and some will survive. And I’ll try the case that I have jurisdiction over, which is the Northern District of Ohio group. What that will accomplish, I don’t know. But I’d rather not do that. So that’s really what I want to talk to everyone [about] today, and if we can get some agreement on both sides [then] that’s what we ought to do.”
Settlement—or at least an attempt at settlement that included a new way to limit the distribution and prescribing of opioids—was a moral imperative, he argued.
“I think we have an opportunity to do it, and it would be an abject abdication of our responsibility not to try it,” he said. “And if we can get some general agreement that we should try it, then we’ll figure out today how do we organize that effort.”
One by one, the key lawyers for both sides addressed the judge. Most spoke in platitudes as they tried to remain deferential to the judge’s wishes, but also to be realistic about what they saw as an inevitable courtroom confrontation.
“Thank you for your comments,” Joe Rice began. “I think I can say on behalf of all the plaintiffs that we share your feeling of urgency. And I can tell you that all of our clients are dealing with this every day at the city, county level, everybody. So we are here to give you the time and the talents that we can have to try to bring something together as quickly as possible.”
Paul Hanly then stood before the judge. The plaintiffs were in favor of reaching a resolution, he said, but they wanted to proceed on a litigation track at the same time because some drug company lawyers were far more interested in fighting than settling.
“I understood that, Paul,” Polster replied. “But the resolution I’m talking about is really—what I’m interested in doing is not just moving money around, because this is an ongoing crisis. What we’ve got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly. Because we all know that a whole lot of them have gone walking and with devastating results. And that’s happening right now. So that’s what I want to accomplish. And then we’ll deal with the money. We can deal with the money also and the treatment. I mean, that’s what—you know, we need a whole lot—some new systems in place, and we need some treatment. Okay? We don’t need a lot of briefs and we don’t need trials.”
Mark S. Cheffo, the lead lawyer representing Purdue Pharma and other drug manufacturers, told Polster that he recognized there were “issues in this country” and he wanted his company to be part of the solution. “We welcome the opportunity to kind of sit down with the court, hear your ideas and try to be as productive as we can,” he said. “We want to participate with Your Honor and at least try to explore some of these ideas.”
Toward the end of the meeting, Polster said he wanted to divide up the lawyers, put them in different unused courtrooms, and let them start to figure out a way to settle the cases quickly.
“I read recently that we’ve managed in the last two years, because of the opioid problem, to do what our country has not done in fifty years, which is to for two consecutive years, reduce, lower the average life expectancy of Americans,” the judge concluded. “And if we don’t do something in 2018, we’ll have accomplished it for three years in a row, which we haven’t done since the flu epidemic a hundred years ago wiped out 10 percent of the population. And this is 100 percent man-made. Now, I’m pretty ashamed that this has occurred while I’ve been around. So, I think we all should be.”
Like many lawyers, Kaspar J. Stoffelmayr, a partner with the Chicago-based Bartlit Beck law firm and the lead counsel for Walgreens, listened in on a conference line. A lawyer for twenty years, Stoffelmayr had participated in several sprawling MDLs, defending major corporations such as DuPont and Bayer in product liability cases. He thought Polster had planned to hold a case management conference that morning to discuss logistics—which lawyers would be part of the leadership structure and who would serve as liaisons to several special masters appointed to help the judge.
Stoffelmayr was taken aback when Polster announced that he wanted the parties to settle rather than litigate. How could the judge say on day one that he was less interested in the legal dispute? Stoffelmayr had never been involved in any litigation that worked that way.
Certainly unusual, Stoffelmayr thought.
As the lawyers left the courtroom, they groused in whispered exchanges.
“Pollyanna,” one said.
“Over his head,” said another.
Paul had a different take.
There ain’t no fucking way this thing is going to settle like that, he thought.