January 11, 2019 / 8:03 PM / 4 months ago

Opioid MDL judge refuses to allow defendants to gag plaintiffs' lawyers, state AGs

(Reuters) - On Thursday, U.S. District Judge Dan Polster of Cleveland denied a motion by defendants in the gargantuan opioid multidistrict litigation for a gag order precluding plaintiffs’ lawyers in the case – including state elected officials – from speaking outside of court about the scope of the litigation and the evidence they’ve obtained.

The defendants, including Endo Pharmaceuticals, Allergan, AmerisouceBergen, Purdue and McKesson, had asked Judge Polster for leave to seek the gag order and sanctions after Ohio Attorney General Mike DeWine (now governor-elect) and two other plaintiffs’ lawyers in the MDL appeared in a "60 Minutes" segment about the opioid epidemic. At a status conference Thursday, Judge Polster said he would not allow defendants to file the motion.

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His docket entry did not discuss the merits of the defendants’ allegations that DeWine and the other lawyers disclosed data shielded by a protective order and improperly inflamed public opinion in advance of bellwether trials scheduled to take place later this year. Lawyers who attended the hearing declined to comment on what Judge Polster said about the defendants’ allegations. But it seems clear that the judge did not believe there was sufficient merit in the defendants’ claims to warrant spending any time litigating them.

Judge Polster has previously told all of the lawyers in the MDL that he doesn’t want to waste time on name-calling. He has also imposed a gag on settlement discussions and entered a strict protective order barring disclosure of prescription data produced by the U.S. Drug Enforcement Agency. His decision not to allow defendants to impose additional strictures on plaintiffs’ lawyers suggests that Judge Polster thinks he has already set clear, bipartisan boundaries on what lawyers are allowed to discuss outside of court.

Polster’s ruling marks the second time in a week that federal judges overseeing big MDLs against the pharmaceutical industry have refused to silence plaintiffs' lawyers. As I’ve told you, U.S. District Judge Cynthia Rufe ruled Friday that defendants in an price-fixing class action against generic drugmakers are not entitled to a gag order to block state AGs and plaintiffs' lawyers from talking about the case. In a one-page decision, Judge Rufe said a gag order would not be appropriate when no trial is imminent. She also said she saw no reason to admonish the AGs and private plaintiffs' lawyers to comply with ethics rules and her orders.

Pharmaceutical companies in both the price-fixing case and the opioids MDL were careful to peg their gag order motions to particular media appearances in which, they contended, plaintiffs’ lawyers improperly disclosed discovery and breached ethics rules about influencing jury pools. I talked about the specifics of the allegations in the price-fixing case earlier this week so I’ll focus here on the assertions of the opioid defendants in the motion Judge Polster rejected on Thursday. They claimed that in his “60 Minutes” appearance, DeWine violated the protective order on the government’s prescription data by describing the DEA evidence contained in as “shocking.” (DeWine also said that he couldn’t talk about specifics because of Judge Polster’s protective order.) Defendants accused another plaintiffs’ lawyer, Burton LeBlanc of Baron & Budd, of improperly asserting, in response to a question about the DEA data, that large volumes of prescription opioids were distributed to particular parts of the county.

According to the defendants, Mike Moore, the former Mississippi attorney general who now represents several cities and states in the opioid litigation as a private lawyer, crossed an ethical line when he predicted a jury award of $100 billion and said he was using the playbook that had been so successful for him in 1990s tobacco litigation: “Build legal and public pressure until the companies see no choice but to settle and fork over billions.”

Such statements, the defendants said, “blatantly violate” Ohio’s ethics rule, which says lawyers should not comment outside of court if they know their information “will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” They asked Judge Polster to enter a gag order that would preclude plaintiffs’ lawyers from making any statements about the credibility or character of drugmakers and sellers; the strengths and weaknesses of their case; and information that may not be admissible in court but is likely to prejudice public opinion.

The defendants contended that a gag order setting those standards would merely force the plaintiffs to comply with ethics rules and Judge Polster’s previous restrictions on the disclosure of DEA evidence and settlement negotiations. But they also said that plaintiffs’ lawyers had repeatedly breached those conditions in conversations with reporters.

As a longtime legal reporter, I can say with great confidence that if Judge Polster had entered the gag order defendants sought, he would have chilled plaintiffs’ lawyers from talking to reporters about their allegations that pharmaceutical companies and wholesalers bear responsibility for falsely marketing their FDA-approved products.

And that, according to plaintiffs' lawyers, would have allowed defendants unilaterally to shape public perception of their role in the opioid crisis. Even though Judge Polster has refused to grant the defendants’ request for a gag order, it’s worth reading the plaintiffs’ response to the motion to quash their public discussion of the case. The brief, signed by MDL lead counsel Joe Rice of Motley Rice, Paul Hanly of Simmons Hanly Conroy and Paul Farrell of Greene Ketchum Farrell Bailey & Tweel, not only refutes the specific accusations in the defendants’ brief but also argues a more fundamental point: “Attempting to silence discussion … in the public forum is neither proper nor warranted. The attempt to do so is especially inappropriate coming from defendants who have been and are engaged in public relations campaigns designed to influence public opinion across the country.”

The brief offers all sorts of examples of how defendants are using their money and power to tell their side of the story. Purdue Pharma runs full-page advertisements in the New York Times and the Wall Street Journal. McKesson posts a point-by-point response to the "60 Minutes" segment on its website. Pharma defense lawyers provide background briefings to reporters about plaintiffs’ lawyers’ contingency fee deals.

“It is inevitable, and appropriate, that the opioid epidemic is, and will continue to be, a subject of robust public debate,” the plaintiffs’ brief said. “A public health crisis of this magnitude raises multiple important issues about prescription pharmaceuticals, the control of dangerous substances, how to address and abate this crisis and how to prevent future epidemics of this type. In this context, transparency is especially important. The public should hear from all sides of the issue, and should be aware who is saying what at any given time.”

Hard to argue with that.

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