Defendants Oppose Class Certification in Prescription Opiate Litigation

The prescription drug manufacturers and distributors on the defensive in In re: National Prescription Opiate Litigation filed an opposition to the neonatal abstinence syndrome (NAS) plaintiffs’ motion for class certification Oct. 9. The defendants argue that the class-action mechanism is an inappropriate way to resolve what they call “classic personal injury claims.”

The plaintiffs, a collection of guardians, contend that their children suffered personal injury from opiate-induced NAS after the birth mothers used the defendants’ prescription medications, the opposition explained. NAS, according to the defendants, is “an umbrella term for a set of clinical symptoms that manifest shortly after birth in some infants who were exposed to certain substances during their mothers’ pregnancies. It is a short-term syndrome—most infants diagnosed with NAS at birth recover quickly and display no subsequent ill-effects.”

According to the opposition, the named plaintiffs seek injunctive relief and damages for a class and several subclasses of aggrieved children, who they claim may suffer long-term NAS-related afflictions that will only manifest later. The defendants counter that many threshold issues stand between the plaintiffs and class certification, writing that “[i]ndeed, Plaintiffs’ showing under Rule 23(a) is so plainly deficient that it should not be necessary for the Court even to address Rule 23(b).”

In particular, the defendants argue that individualized issues pose insurmountable challenges. For example, the defendants cite a number of questions that they argue cannot be answered on a class-wide basis, such as whether a child was diagnosed with opiate-related NAS at or near birth and whether the NAS was caused by opioid exposure in utero rather than exposure to other substances like tobacco or alcohol that the birth mother consumed. The opposition also notes that much of guardians’ motion is occupied with merits arguments contending why members of the proposed classes have suffered injury and are entitled to relief, rather than class certification arguments.

The defendants also argue that the plaintiffs’ proposed class representatives are neither typical nor adequate. In particular, they contend that “the proposed class representatives are not even members of the proposed class, as the evidentiary record does not show that their children received ‘opioid-related NAS diagnoses’ at or near birth.”

As to Rule 23(b), the manufacturers and distributors contend that “individualized analysis would be required to resolve the claims of any class member,” defeating the predominance requirement. The guardians have also failed to show that class treatment is a superior method to adjudicate these “quintessentially individual personal injury claims,” the opposition states. Finally, in a footnote, the filing contends that the court lacks personal jurisdiction over some of the defendants named in the litigation and reserves their right to raise additional defenses.

In the same proceeding, state and local government plaintiffs’ claims may be edging closer to resolution as settlement talks continue. Last week, Johnson & Johnson announced[MOU1] it would increase its settlement contribution to $5 billion, up from its proposed $4 billion announced last October.

The defendant companies are represented by lawyers from Covington & Burling LLP, Williams & Connolly LLP, Jones Day, Fox Rothschild LLP, Zuckerman Spaeder LLP, Arnold & Porter Kaye Scholer LLP, Alston & Bird LLP, Kirkland & Ellis LLP, Marcus & Shapira, LLP, Perkins Coie LLP, Foley & Lardner LLP, Morgan, Lewis & Bockius LLP, O’Melveny & Myers LLP, Hogan Lovells US LLP, Bartlit Beck LLP, Blank Rome LLP, Reed Smith LLP, Barnes & Thornburg LLP and Ropes & Gray LLP.

The NAS plaintiffs, per their motion for class certification, are represented by The Dann Law Firm, Martzell Bickford & Centola, Cooper Law Firm LLC and The Bilek Law Firm, L.L.P.