Opioid Multidistrict Litigation Secrecy
37 Pages Posted: 30 Jun 2019 Last revised: 20 Jan 2021
Date Written: September 21, 2019
Considerable attention has been devoted to the massive opioid multidistrict litigation (MDL), which consists of nearly 2,000 federal court cases consolidated before Judge Dan Polster in United States District Court for the Northern District of Ohio. Journalists have examined whether the plaintiff states, counties, municipalities, and tribes have pleaded viable legal causes of action against the defendant manufacturers, distributors, and retailers that stand accused of exacerbating the opioid crisis via misbranding, aggressively marketing, and failing to monitor, flag, and report suspicious shipments of prescription opioid pills. Pundit speculation has abounded regarding the scope of potential damages in play in the litigation given that experts estimate that “fixing” the crisis will cost more than $480 billion over the next decade. And the media has enthusiastically covered the nefarious allegations that have been leveled at the crisis’ most notorious villains: the wealthy Sacklers of Perdue Pharma fame.
Until recently, however, scant attention has been consigned to the opioid MDL’s most salient and, arguably, most disturbing feature: its insidious secrecy. The clandestine nature of the MDL has prevented the public from understanding the plaintiffs’ allegations and legal arguments, the basic facts concerning the scope of corporate marketing, distribution, and sales of prescription opioids, and the DEA’s confounding failure to detect suspicious sales of the drugs and, thereby, mitigate diversion. This essay examines the events that instigated the secrecy that has cloaked the opioid MDL, discusses the legal merits of district court’s non-disclosure rulings in the mass tort public health litigation, and, ultimately, contends that a judge’s failure to make transparent crucial evidence in aggregate national health emergency lawsuits, like the opioid MDL, is likely to undermine the public health outcomes the litigation aims to achieve.
Keywords: multidistrict litigation; opioids; transparency; MDL, health law, mass torts, complex litigation
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