December 09, 2019 Articles

Can a Negotiating Class Yield a Covered Settlement of the Opioid Litigation?

A novel approach to achieving a global resolution in the multidistrict litigation is moving forward, but there is a dearth of court guidance on coverage for the litigation.

By Daniel E. Tranen

Opioid litigation has been raging in courts around the country for more than two years. There is multidistrict federal court litigation in Ohio, [2] which comprises nearly 2,000 cases. There also are state court cases around the country that have not been included in the multidistrict litigation (MDL), some of which have already reached the trial stage (e.g., a bench trial in Oklahoma).[3]

Some opioid litigation claims have settled, too. But settlements are few and far between. The bulk of opioid cases, including most of the cases in the MDL, are either being actively litigated or in a holding pattern.

The issues in the opioid litigation largely arise out of allegations that opioid manufacturers and entities that have sold or prescribed opioids—including pharmaceutical distributors, pharmacies, hospitals, and doctors—either understated the addictive nature of opioids or participated directly or indirectly in the diversion of opioids onto a black market. Plaintiffs assert that both of these scenarios caused what is now commonly referred to as the “opioid epidemic,” which has led to tens of thousands of opioid-related deaths, hundreds of thousands of opioid user overdoses, and billions of dollars of associated economic losses, including through the effort to rehabilitate millions of people who have become addicted to prescription opioids and related drugs. [4]

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