Opioid litigation ramps up
By Colin Jorgensen, Risk Management Litigation Counsel
Greetings from the trenches of the united lawsuit filed by Arkansas counties, cities, and the state, against opioid manufacturers, distributors, and other opioid defendants. This is an update, with a sprinkling of war stories, about this unprecedented case. Our goal is unchanging: a comprehensive remedy to the Arkansas Opioid Epidemic, funded by those responsible for unleashing this epidemic on our people. We remain pleased to report that the lawsuit — your lawsuit — is still on file with the Crittenden County Circuit Court, before 2nd Judicial District Circuit Judge Pamela Honeycutt, on the path to a trial before an Arkansas jury.
I last updated you in the Summer 2018 issue of County Lines (more on this below). I told you that on Aug. 30, 2018, we — the lawyers representing the Arkansas governments in your case against the opioid industry — filed a unified response to all of the defendants’ many motions to dismiss, and began to pursue the Drug Enforcement Administration’s (DEA) “ARCOS” database, which tracks opioid sales nationwide throughout the supply chain.
As expected, the defendants filed many reply briefs in support of their dismissal motions in early October 2018. On Oct. 12, we served written discovery on the defendants. We asked the defendants to provide sworn answers to written questions and disclose documentation and information relevant to the opioid epidemic in Arkansas and the defendants’ role in the epidemic. Written discovery is a standard part of civil litigation, and we made no secret about the fact we intend to litigate this case. The defendants and their legions of law firms responded by filing numerous motions requesting a stay of discovery and various other relief from the discovery, rather than respond to the discovery as defendants usually do. At a hearing on Oct. 31, 2018, Judge Honeycutt appropriately and cautiously granted a temporary stay of discovery but did not rule on the defendants’ motions to stay the case.
Our hands were tied, temporarily. With suboptimal news to report when it came time for the next seasonal issue of County Lines, I cashed in my one-and-only get-out-of-jail-free card with the editor, which is why you haven’t heard from me in six months.
Throughout November, December, and January 2019, the defendants filed scores of “cross-notices” regarding depositions taking place all over the country through the national Multidistrict Litigation (MDL) case lodged in Ohio. The defendants’ attorneys attempted to force us (your lawyers) to attend these depositions without access to documentation and information necessary to prepare for the depositions. We filed a motion to “quash” the many cross-notices of deposition, and asked to be heard on that motion and our objections to a stay of discovery at the hearing scheduled for Jan. 29, 2019.
This time, on Jan. 29, we had the whole day scheduled with Judge Honeycutt. Everyone took advantage — I’ve never seen so much ground covered in a single day of court between a single judge and lawyers (admittedly, a very large number of lawyers). Counsel presented about five hours of oral argument to Judge Honeycutt, and we were able to fully argue many (but not all) of the defendants’ motions to dismiss. Judge Honeycutt took almost all of those arguments under advisement, which means she will issue a written ruling later. We remain confident that the plaintiff counties, cities, and state will be permitted to pursue their claims against opioid manufacturers, distributors, and others, for violating Arkansas law. We look forward to Judge Honeycutt’s rulings on these issues that we have written and argued about extensively in the case.
On Jan. 29, Judge Honeycutt also ruled from the bench regarding several issues and motions apart from issues raised in the defendants’ motions to dismiss.
First, Judge Honeycutt announced she will quash the defendants’ cross-notices of depositions as we requested on behalf of the plaintiffs. Judge Honeycutt explained that although it might make sense to coordinate discovery with other cases, the temporary stay of discovery “did strap the Plaintiffs from being able to get information that they needed before those depositions.” Therefore, she quashed the cross-notices of deposition.
Second, Judge Honeycutt announced she will lift the stay of discovery, as we also requested on behalf of the plaintiffs. She will lift the stay that she put in place on Halloween, and she will deny the defendants’ motions for a longer (or indefinite) stay of discovery. The defendants will be required to respond to the written discovery served on them in October. Judge Honeycutt explained the effect of this best at the hearing when she said she is lifting the stay of discovery “so that the case can start moving.”
Third, Judge Honeycutt revisited an issue we raised on behalf of the plaintiffs at the outset: the fair application of litigation privileges — the attorney-client privilege and attorney work product privilege — for all parties to the case, including the government plaintiffs. Without a protective order, because the plaintiffs are all state and local government entities, the plaintiffs’ records are generally subject to disclosure under the Arkansas Freedom of Information Act (FOIA), including records that are confidential by court rule in litigation, such as attorney-client communications and attorney work product. From the beginning, we have argued that because of the unique nature of this case, the Court should enter a protective order to protect the integrity of the case by allowing the governments to rely on litigation privileges that private parties (including the defendants in this case) are always afforded in litigation. Upon revisiting this issue on Jan. 29, Judge Honeycutt granted the FOIA protective order that we requested on behalf of the plaintiff governments to ensure fairness in this case.
After the January hearing, we negotiated and submitted a written protective order to Judge Honeycutt, which she signed and filed, formalizing her rulings by lifting the stay of discovery, quashing the defendants’ cross-notices of depositions, protecting the defendants’ confidential data so that the governments can access records and data needed to prosecute the case, and protecting the plaintiff governments’ litigation privileges to ensure fairness in the litigation.
We had another full-day hearing on March 28. We completed oral argument on all motions to dismiss, and Judge Honeycutt has now taken all of them under advisement. She ruled from the bench on one issue in March, deciding that Prosecuting Attorney Scott Ellington has standing to bring claims on behalf of the state in this case.
These rulings are significant — both for the case in Arkansas and how the case fits into the tapestry of opioid litigation across the country. From the beginning and through this writing, this case has been the only case uniting counties, cities, and state government in a single action. To our knowledge, there is no other case uniting even counties and cities together, much less with the state as a plaintiff in the same case. Because of Judge Honeycutt’s rulings, the united Arkansas case is also now one of the few cases in the country that is in state court (not part of the national MDL case) and is proceeding to discovery. With no further delay, we — the governments of Arkansas — will prosecute this case and move closer to our unchanging goal: Opioid Justice for a United Arkansas.