Of all the solutions that might end the opioid epidemic in the U.S., one is about to ripen this month in a Cleveland courtroom. Or perhaps outside the courtroom.
Since 2017, federal Judge Dan Polster has been working to devise a clever pathway for local governments and the opioid industry to negotiate a settlement over what to do about the drug crisis rather than fight it out for years in court while being uncertain of the outcome, either in assigning blame or the size of compensation.
The judge hopes a quick and mediated resolution will bring much-needed money from both opioid makers and distributors to local programs aimed at curbing the crisis. In return, the industry can avoid legal responsibility and costly legal fees. Both sides could enjoy what is called a “peace dividend.”
With an estimated 130 people dying every day in the U.S. from opioid-related overdoses, Judge Polster says the litigants must think through the problem together, “not as a fight to be won or lost.” To focus their minds, he is ready to start a trial on Oct. 21 that would serve as a “bellwether” for further litigation. His unusual tactics may already be working. On Tuesday, health care giant Johnson & Johnson became the latest company to settle.
Judge Polster is setting a precedent for similar court battles over contested damages from harmful products. He has consolidated thousands of cases from across the country and set up two simultaneous tracks, settlement and litigation. Last month, he ruled that all 33,000 counties, cities, and towns can be part of a “negotiation class.” At least 75% of those governments would need to approve a settlement that would be binding.
He also outlined ways for a settlement to fairly distribute money based on need. He said the new “class” is a “powerful, creative, and helpful” option that “is more likely to promote global settlement than it is ... to impede it.”
Dozens of state attorneys general, who assume they can litigate for billions more than they might get in a settlement, oppose the process. But it is local governments, where the opioid crisis is more acutely felt, that seem to want a quick solution. Many probably agree with the judge’s advice that “it’s almost never productive to get the other side angry. ... They lash out and hurt you and themselves.” Most of all, a settlement would bring a measure of healing to communities and families ripped apart by opioid addiction.