As Utah counties line up in court to face off with drug companies accused of contributing to the state’s opioid epidemic, they have disagreed with each other about whether to merge their cases.
Some counties — and the drug companies they’re suing — agree that the flurry of arguments and paperwork that occur before trial will cost less and avoid potentially lengthy appeals if the cases initially are combined before one judge, and later sent back to separate counties for trial.
But others say they’ll be more likely to win if they keep the entire process in their own counties, and consolidating cases would only make it easier for the drug companies to leverage lowball settlements.
For now, most of Utah’s opioid-related lawsuits will remain separate, after a 3rd District judge in Salt Lake County ruled Friday that he doesn’t have the clear authority to force all of the counties to merge their cases.
“Consolidating undermines our ability to put our best case before a Davis County jury,” said Davis County attorney Troy Rawlings. “We want … to do discovery [pre-trial record requests] based on Davis County issues, take depositions based on Davis County issues. We want a Davis County judge. We don’t want to be watered down.”
Davis County joined Salt Lake, Sanpete, Millard, Iron, Grand and San Juan counties in opposing the drug companies’ request to merge at least 20 ongoing and pending opioid lawsuits for pretrial proceedings. Judge Richard Mrazik did order Salt Lake County to join Summit and Tooele counties, as they all are in the 3rd District.
But Mrazik ruled that state law doesn’t explicitly allow him to consolidate cases from other districts, though he said the defendants — a group of drug manufacturers, distributors and doctors — could still petition those counties’ courts for a change of venue for pretrial proceedings. The defendants include Purdue Pharma, Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals and Watson Pharmaceuticals.
“Proceeding in 15 different courts throughout the state with 15 different judges — the burden it’ll place on those courts and on the parties to travel all over the state is excessive. It’s a serious matter,” said Elisabeth McOmber, an attorney for the drug companies.
The judge also recommended that the several counties that want their cases consolidated seek a change of venue. The attorney for those counties, Colin King, said he expected the various counties’ judges to approve the transfers in cases where both the counties and the defendants are in agreement about the change.
Mrazik, in his ruling, agreed that “the ends of justice would be promoted” by consolidating the cases until trial. That would cut down on “discovery disputes and unnecessary duplicative discovery,” Mrazik said — and, most crucially, avoid conflicting rulings from multiple judges, which could hold cases up in appeals for years.
Rawlings said Davis County would continue to resist consolidation, despite the risk of added pretrial disputes.
“Part of our concern is that once the cases are consolidated for pretrial discovery, how much easier is it for the defendants to say, ‘Let’s just consolidate it all for trial … or get all the cases moved to federal court?’” Rawlings said. “We’re damn serious about going before a Davis County jury.”
King said it was “unlikely” that consolidating for the early proceedings would help the drug companies move the trials away from local juries “if we don’t settle.”
“We won’t let them get a foot in the door to do that,” King said. “The citizens of this state have been injured by opioids. They deserve to have a jury in their counties hear what [opioids] have done to injure and kill people, and that was preventable.”
The counties accuse opioid manufacturers of “bankrolling” doctors in dishonest marketing schemes designed to promote highly addictive drugs as treatments for chronic pain, downplaying the risks and overstating the benefits.
In the lawsuits, the counties seek to recoup their costs for increased law enforcement, criminal justice, drug treatment and other social services.