The years-long, contentious wranglings of parties entangled in the National Prescription Opiate MDL looked to be winding down, with the nation’s largest pharmacy retailers offering settlements at the end of 2022. But while opioid litigation has already crossed a wide swath of drugmakers, distributors, and dispensers, plaintiffs’ attorneys aren’t done yet and have set their sights on a new crop of defendants. In their crosshairs are big supermarket chains with in-house pharmacies, a slew of second-tier drug manufacturing companies, and pharmacy benefits managers that were initially put to the side. What appears as a campaign against nearly the entire pharmaceutical industry and its partners is cause for alarm to many midsized pharmacies, manufacturers, and distributors not previously identified in the first wave of litigation. Some new and noteworthy defendants include big chains Albertsons Cos., Kroger Co., and Publix Super Markets, and benefits managers Express Scripts (Cigna Corp. unit) and OptumRx (UnitedHealth Group Inc.).
While plaintiffs’ attorneys assess the fruitfulness of going to trial against these new targets, defense teams should begin to assemble and mobilize experts to inform their legal strategies, as the increased attention will likely cast a long shadow.
Aside from new frontiers in the MDL, opioid cases, in general, are becoming more decentralized, with suits brought by individual plaintiffs seeking damages for the vicissitudes of their lives. The unexpected ruling by the Judiciary Panel for Multidistrict Litigation last year stopped new cases from being added to the Opioid MDL, making the prospect of matters being filed in different federal courts throughout the country a likely outcome—a situation that could have defense counsel and clients rubbernecking at a breakneck pace to manage cases.
While the opioid litigation landscape evolves, the need for qualified experts remains. Consulting with experts with significant industry experience and specialized expertise in drug development, the duties and standards of pharmacists, the rules of processes of investigations, and the role of the DEA, can be crucial to defense teams. Specifically, it would be advantageous for defense counsel to retain former DEA diversion investigators, epidemiologists, economists, physicians, pharmacists, and FDA experts to inform and support their litigation strategies. In particular, we recommend that any defendant that handled controlled substances under a DEA license should line up experts on the anti-diversion and monitoring requirements as soon as possible. There is only a small group of people nationally who are properly qualified to analyze these issues and who are able to take on expert witness work. WIT has developed a series of relationships with former trainers and managers in the DEA’s Diversion Investigation program that has allowed us to affiliate with these hard-to-find experts.
At WIT, our teams of life sciences and former FDA experts are highly credentialed, many of whom are former pharmaceutical executives whose experience spans everything from product development to corporate transactions. Contact us to learn more about our experts.