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On The Case

Plaintiffs' lawyer calls opioid defendants ‘thugs,’ ‘sociopaths,’ judge issues warning

(Reuters) - A Feb. 13 order from U.S. District Judge Dan Polster of Cleveland seems pretty innocuous. The judge, who is overseeing the gigantic multidistrict litigation accusing pharmaceutical manufacturers and wholesalers of sparking the opioid crisis by falsely advertising their products, emphasized that he has no intention of gagging the hundreds of public officials who filed cases on behalf of cities, states and counties. Nor will he bar defendants or their lawyers from talking about the public record in the MDL. But Judge Polster gently reminded everyone in the litigation that Ohio ethics rules prohibit lawyers from making comments outside of the courtroom that impugn the character or reputation of a party in the case.

What you don’t see from Judge Polster’s mild-mannered order is the fierce fight for public opinion that prompted it. Hundreds of billions of dollars are on the line in this litigation, in which bellwether trials are slated to begin in October. State and local governments claim they’re just trying to recoup what they’ve been forced to spend to respond to opioid addiction and overdoses. The defendants counter that prescription opioids are government-approved medications that have helped millions of patients. Each side is making its case not only in court before Judge Polster but out of court as well.

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I’ve already told you about the defendants’ fury over a "60 Minutes" piece on the opioid litigation that featured Ohio’s then attorney general (and now governor) Mike DeWine. That piece prompted defendants to ask Judge Polster to bar plaintiffs' lawyers from talking to reporters about the strength of their case or the evidence defendants have produced. That motion, in turn, spurred MDL lead counsel Joe Rice of Motley Rice, Paul Hanly of Simmons Hanly Conroy and Paul Farrell of Greene Ketchum Farrell Bailey & Tweel to file a brief accusing the pharmaceutical companies of running multimillion-dollar public relations campaigns to sway potential jurors. In January, Judge Polster refused to entertain the defendants’ gag motion, though he cautioned both sides to de-escalate their rhetoric.

Plaintiffs' lawyer Mike Papantonio of Levin Papantonio Thomas Mitchell Rafferty & Proctor failed to heed the judge’s warning. As defendants’ liaison counsel Mark Cheffo of Dechert informed Judge Polster in a Feb. 4 letter, Papantonio – who is one of the city of Cleveland’s outside lawyers and sits on the plaintiffs’ executive committee – posted the transcript of an interview he conducted for his "Ring of Fire" radio show. According to the transcript Cheffo attached to his letter, Papantonio described the family that founded Purdue Pharma as “scumbags,” “thugs” and “criminals” who “need to be in prison.” He claimed the Justice Department is in cahoots with the pharmaceutical industry because “they don’t look like criminals” and “they put their names on medical schools.”

Papantonio specifically referred in the transcript to depositions of opioid distributors that he took in the MDL before Judge Polster, opining that he felt like he was sitting across the table from “sociopaths (with) a nice suit on.”

Defense counsel Cheffo suggested that Judge Polster exclude Papantonio from trying cases for his clients – a stinging request considering that one of Papantonio’s clients, Cleveland, is a bellwether plaintiff.

In a subsequent Feb. 11 letter, Covington & Burling’s Mark Lynch claimed Papantonio’s comments about Purdue’s founders weren’t his only transgressions. Covington, which represents the pharma distributor McKesson, claimed the plaintiffs’ lawyer had improperly insinuated – both in his radio show over the summer and in depositions of McKesson witnesses – that the Justice Department went easy on opioid defendants because former Attorney General Eric Holder, a Covington partner before and after he served as AG, worked out “some secret deal” for a Covington client. “McKesson agrees with Mr. Cheffo that Mr. Papantonio has forfeited the privilege of serving on the plaintiffs' leadership team and examining any further witnesses in this litigation,” the Lynch letter said.

Papantonio admitted in his own letter to Judge Polster that he’d gotten carried away in that "Ring of Fire" episode in January. “I would be the first to admit that I failed miserably to maintain a level of appropriate composure,” he said. “I could have, should have and will do better in the future … I allowed anger to overcome solid judgment.” He assured Judge Polster that he had taken down the transcript that infuriated defense counsel.

But Papantonio denied that his criticism of the opioid defendants violated any court orders prohibiting disclosure of confidential information or settlement negotiations. Moreover, Papantonio argued, his comments reached only a sliver of the audience that the defendants regularly reach with advertisements designed “to convince the public that their conduct could somehow be characterized as noble and unselfish.” Purdue, he said, reaches a half-million people when it runs full-age ads in The New York Times. His internet post on Purdue’s founders, Papantonio said, circulated to only 2,500 people.

At the hearing last month on the “60 Minutes” segment, Judge Polster told all of the assembled lawyers that he wasn’t happy about plaintiffs’ lawyers’ comments on the show, which, he said, went “right up to the edge of where anyone should go.” Based on the order he issued last week – which formalizes his warnings – the judge seems to believe Papantonio went over the edge.

I should point out that Judge Polster did not order Papantonio to be unseated from the plaintiffs’ executive committee and did not restrict him from appearing as Cleveland’s lawyer in the October trial.

Papantonio declined to comment. Lead plaintiffs’ lawyers Hanly and Rice also declined to comment on the incident.

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