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Maryland opioid plaintiffs differ on choice of federal or state court

‘We want to remain before city judges and, if it comes to that, city jurors,’ says Baltimore City Solicitor Andre M. Davis. (File photo)

‘We want to remain before city judges and, if it comes to that, city jurors,’ says Baltimore City Solicitor
Andre M. Davis. (File photo)

A handful of jurisdictions in Maryland have filed lawsuits against opioid manufacturers and distributors making substantially similar allegations but they have differed in their choice of forum, with some opting to file in state court and others filing federal actions.

The plaintiffs that have filed or will file in federal court do so with the intention of being included in the multi-district litigation pending in the U.S. District Court in Ohio. More than 400 cases have been consolidated before Judge Dan A. Polster to resolve common questions of fact and engage in settlement talks.

The plaintiffs who opted to file in state court say they want to see the case tried in their jurisdiction with their judges and juries presiding.

By including in-state defendants like doctors and medical practices accused of operating as “pill mills,” the plaintiffs who filed in state court create a situation where the defendants lack complete diversity, which would otherwise allow the out-of-state defendants to remove the case to federal court.

Baltimore City Solicitor Andre M. Davis said Baltimore did its due diligence before deciding to file in Baltimore City Circuit Court.

“We made the conscious decision that the best interest of the city… is to file in and do what we can to remain in state court here in the city,” he said. “We want to remain before city judges and, if it comes to that, city jurors.”

But the corporate defendants appear poised to fight for removal of state court actions.

At least one defendant in Anne Arundel County’s lawsuit, filed in early January, removed the case to federal court Tuesday, arguing plaintiffs have been “tacking on unrelated non-diverse defendants…in an effort to destroy diversity jurisdiction.”

Tuesday’s filing by Endo Pharmaceuticals Inc. and Endo Health Solutions argues the court should ignore the citizenship of the non-diverse defendants, sever them and retain diversity jurisdiction over the remaining out-of-state parties.

Anne Arundel County Attorney Nancy McCutchen-Duden said last month the county though it was “very important to stay in state court,” calling it where the case belongs.

Duden did not respond to a request for comment on the removal notice Wednesday.

According to the filing, Polster has already seen cases removed to federal court and transferred to the multi-district litigation where he indicated he will address remand motions in a coordinated proceeding.

Federal progress

Aelish Baig, a San Francisco-based attorney whose firm is representing jurisdictions nationwide, said it’s up to the client whether to file in state or federal court. Baig’s firm, Robbins Geller Rudman & Dowd LLP, represents Montgomery County, which has already filed its federal suit, and Baltimore County, which plans to file one. Baig said the multidistrict litigation is moving quickly and lots of jurisdictions are watching it closely as they prepare to file suit.

“Judge Polster is definitely on it and he’s very focused on trying to resolve these cases by the end of the year,” she said. “He basically came out at the first hearing and said: ‘Look, there’s 150 people dying every single day. People don’t need more documents and more depositions, they need this to be abated.’”

Baig said attorneys in the multidistrict litigation are already seeking documents and information from the manufacturers and distributors as well as access to a Drug Enforcement Agency database that tracks sales and distribution of opioids.

“There will be a lot of discovery that’s sought of the manufacturers and distributors and the details of their practices about what they knew and when they knew,” she said.

Baltimore County Executive Kevin Kamenetz said the county selected Robbins Geller with an eye toward filing in federal court.

“We thought that that had the greatest chance of getting the attention of the defendants as well as having a managed process by the court,” he said.

Montgomery County similarly opted to file a federal case.

“For us, it made a lot of sense to be in federal court because we figured most of the defendants would try to remove the case anyhow and there’s strength in numbers,” Deputy County Attorney John P. Markovs said.

Another consideration for the county was the resources available in the state court system. Markovs described the county’s lawsuit last year over the Silver Spring Transit Center as an “enormous” drain.

“The transit center case pales in comparison to what this opioid litigation looks like,” he said.

But Davis said he is not concerned with Baltimore City Circuit Court’s ability to handle the litigation, calling it the busiest court in the state “since time immemorial.”

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