New York Times: Opioid Settlement Talks Stumble With Trial Set for Monday

A federal judge had summoned chief executives of drug companies and representatives of states and local governments to try to hammer out a deal. But some issues remain unresolved.

CLEVELAND — After a long day of negotiations on Friday between major drug industry corporations and thousands of local governments and states suing over the companies’ role in the opioid epidemic, talks ended with the parties — even among the plaintiffs — still far apart.

“We worked hard to put together a $48 billion deal that would give immediate relief to our states and we’re deeply disappointed that the cities and counties refuse to go along with that deal,” said Josh Stein, the attorney general for North Carolina.

And Herbert H. Slatery, the attorney general for Tennessee, said that in his state, four people had died that day. “When we delay things it has real consequences in the lives of people,” he said.

The day began with the chief executives of three major drug distributors among those summoned to the federal courthouse in Cleveland by Judge Dan A. Polster, who was attempting to wrest a last-minute, comprehensive settlement to resolve thousands of cases filed by cities and counties as well as those filed by state attorneys general in state court.

Judge Polster is presiding over the first federal opioid trial, set to begin on Monday, involving two Ohio counties. With the trial looming, the talks had been gathering in intensity in recent days. Adding to the pressure-cooker atmosphere was the specter of 12 jurors, sworn in by the judge on Thursday, in anticipation that opening statements would begin as scheduled. Inexorable moves such as these can often prod the sides to the desired result: settlement.

It was unclear at day’s end how far apart the sides were, and informal discussions would continue over the weekend.

Friday’s extraordinary sessions included top executives from the distributors, AmerisourceBergen, Cardinal Health and McKesson; state attorneys general from Texas, Pennsylvania, North Carolina and Tennessee; lawyers for more than 2,300 opioid lawsuits filed by cities, counties and tribes nationwide; and delegates from cities large and small that have been devastated by the two-decade-long epidemic. More than 400,000 people have died in that time.

Also in court were executives representing Walgreens, the pharmacy chain; Teva, the Israeli-based manufacturer of generic drugs; and Henry Schein Medical, a small drug distributor.

The harsh words on Friday night from the attorneys general exposed the sharp divide between two powerful groups of plaintiffs, the states and the local communities.

“It’s regrettable that they think it’s us,” said Joe Rice, the lead lawyer for thousands of cities, counties and tribes whose cases are consolidated under the judge’s supervision. He instead criticized the distributors for proposing a deal that was short on money and took too long to unfold.

The attorneys general said that they had been inclined to accept the deal, which would be paid out over 18 years. It would include $18 billion in cash and $3 billion in delivery services from the distributors, $4 billion from Johnson & Johnson, and $23 billion worth of generic medicine from Teva.

Companies reached for comment either declined to do so or did not respond to messages.

Paul Farrell, another lawyer on the team for local governments, said that discussions with Walgreens, which is being sued for its role as a distributor of opioids to its own pharmacies, “were not fruitful.”

The case at the center of Monday’s trial was brought by two Ohio counties, Cuyahoga and Summit, although the negotiations contemplated a settlement that would resolve thousands of other cases around the country. The Ohio trial is considered a powerful litmus test for all the parties.

There are many more other drug industry defendants, including the pharmacy chains Walmart, Rite Aid and CVS, in the far-flung web of litigation. But now that Purdue Pharma’s tentative deal is caught up in a lengthy bankruptcy court review, a global settlement would be the first in the national opioid litigation.

Plaintiffs’ lawyers say a wide-ranging settlement could have a domino effect on the remaining defendants, encouraging them to reach a comprehensive deal too.

But people familiar with the state of play on Friday in Cleveland suggested that the existing obstacles could lead to a much narrower outcome, with only the Ohio cases settling, rather than a global resolution.

One sticking point, said some members of the local governments’ legal team, was that the distributors would not estimate the losses suffered by West Virginia communities, saying that the state itself had already settled with the three distributors for about $73 million.

A signature tension in the talks to date is how to allocate any money from the settlement. Local governments are wary of ceding that power to the states, mindful that much of the money from the Big Tobacco settlement ended up in general funds for legislatures, rather than being disbursed to local communities.

Mr. Farrell said that “the attorneys general are deciding among themselves how to allocate the money.”

People familiar with the negotiations also said that a major stumbling block was a dispute over fees for the private lawyers.

But Mr. Rice dismissed that assertion with a wave of his hand. “We have agreed that the attorneys’ fees will be established by the court,” he said, a process that had been established in earlier mass litigations like the Volkswagen cases. He characterized the fees as “in single digits.” Typically, plaintiffs’ lawyers work on contingency fees for roughly 25 percent to one-third of a settlement.

Another issue in the talks is public transparency: If the companies reach a settlement, plaintiffs’ lawyers want to ensure that records of what transpired during the years of one of the country’s greatest public health crises are unsealed.

Throughout the day, parties caucused in separate rooms on two floors, as negotiators, including Judge Polster, shuttled among them.

Clusters of lawyers and public relations managers paced back and forth, muttering in hallways, cellphones glued to their ears. They would have jaunty expressions, radiating confidence, but then a phone would ring and faces would abruptly turn dour. Then another phone would ring.

Steve Williams, the mayor of Huntington, W. Va., a small city staggered by opioids, seemed frustrated.

“We put drug dealers in the alleys in jail, and there are these drug dealers sitting here in board rooms and now we’re just talking about money? We’re angry in Huntington,” Mr. Williams said. “If there was not a single tablet distributed again and not another gram of heroin, we would still be dealing with the aftereffects for four decades.”

This article was originally published in the New York Times.