United States District Court, N.D. Ohio, Eastern Division
IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO Track One Cases
OPINION AND ORDER
AARON POLSTER UNITED STATES DISTRICT JUDGE.
the Court is Track One Plaintiffs' Motion to
Sever Defendants and to Extend the Deadline to Respond to
Noramco, Inc.'s Motion for Judgment on the Pleadings or,
in the Alternative, Summary Judgment (“Severance
Motion”). Doc. #: 2099. Plaintiffs ask
the Court to sever several Defendants and to extend the deadline
for responding to Noramco's Motion for Judgment on the
Pleadings, etc. (“MSJ”) Doc. #:
1902. The Court issued an order directing any
defendant opposing this motion to file a response by August
7, 2019 and directing Plaintiffs to file a reply by August 9,
2019. Various Track One Defendants filed response
briefs objecting to the proposed severance. See Doc.
#: 2141 (Noramco); Doc. #: 2142 (the Proposed Severed
Defendants other than Noramco); Doc. #: 2143 (Distributors);
Doc. #: 2144 (Manufacturers); and Doc. #: 2145 (Walgreens).
Track One Plaintiffs filed a reply. Doc. #: 2158.
Track One Plaintiffs' also filed a separate
motion to sever two CVS entities. (“CVS Motion”)
Doc. #: 2148. Walgreens also filed a
response brief objecting to Plaintiffs' CVS Motion. Doc.
#: 2160 (reiterating the same arguments). Having carefully
considered the parties' briefs, the Court
GRANTS-IN-PART Plaintiffs' Severance
Motion and GRANTS Plaintiffs' CVS
of the Federal Rules of Civil Procedure permits the district
court broad discretion in determining whether or not claims
or actions should be severed. See Parchman v. SLM
Corp., 896 F.3d 728, 733 (6th Cir. 2018) (citations
omitted). See also Estate of Amergi ex rel. Amergi v.
Palestinian Authority, 611 F.3d 1350, 1367 (11th Cir.
2010) (upholding severance decision where “the district
court plainly had sound administrative reasons to try to
simplify a case that was becoming increasingly
consider a number of factors when determining whether to
sever claims, including:
(1) whether the claims arise out of the same transaction or
(2) whether the claims present some common questions of law
(3) whether settlement of the claims or judicial economy
would be facilitated;
(4) whether prejudice would be avoided if severance were
(5) whether different witnesses and documentary proof are
required for separate claims.
Parchman., 896 F.3d at 733 (citing Productive
MD, LLC v. Aetna Health, Inc., 969 F.Supp.2d 901, 940
(M.D. Tenn. 2013)).
same time, “the whole purpose of bellwether litigation
. . . is to enable other litigants to learn from the
experience and reassess their tactics and strategy (and,
hopefully, settle).” In re Cox Enters., Inc.
Set-top Cable Television Box Antitrust Litig., 835 F.3d
1195, 1208 (10th Cir. 2016) (citing Eldon E. Fallon, Jeremy
T. Grabill and Robert Pitard Wynne, Bellwether Trials in
Multidistrict Litig., 82 Tul. L. Rev. 2323 (2008)); see
also In re E.I. du Pont de Nemours & Co. C-8 Pers. Injury
Litig., 204 F.Supp.3d 962, 968 (S.D. Ohio 2016)
(bellwether cases were specifically chosen for the purpose of
“information gathering that would facilitate valuation
of cases to assist in global settlement.”)
Court, having reviewed the briefs and the record and
considering all parties' positions, concludes that
severance will serve to 1) simplify the October trial and
make it administratively manageable, 2) facilitate judicial
economy and preserve judicial resources, and 3) encourage and
assist in reaching a global resolution. Having fewer
defendants in the first bellwether trial will allow
Plaintiffs to provide a more coherent presentation of the
specific issues involved in the opioid crisis. Severing these
defendants will allow the Court to focus its attention on the
Parties' remaining summary judgment and Daubert
motions. This in turn will undoubtedly help facilitate
settlement with the remaining defendants in the remaining
Court also notes that while the Court was considering
Plaintiffs' Severance Motion, Defendants filed a motion
entitled “Defendants' Motion for Additional Trial
Time and for Timely Election by Plaintiffs of Claims and
Defendants They Seek to Pursue at Trial” where
they assert that ““[m]aterially narrowing claims
and parties is essential as a matter of simple pretrial
logistics, ” Doc. #: 2133 at 8 (emphasis added). As
Plaintiffs note, Defendants' opposition is “both
ironic and somewhat baffling.” Doc. #: 2158 at 2.
the Court GRANTSTrack One
Plaintiffs' motions to sever the claims against
Defendants Anda, Inc., Discount Drug Mart, Inc., HBC Service
Company, H.D. Smith, LLC, Prescription Supply, Inc., Rite Aid
Corporation, Walmart Inc. f/k/a Wal-Mart Stores, Inc., CVS
Indiana, L.L.C., and CVS RX Services, Inc. The claims against
these defendants will be tried in a subsequent trial with a
date to be determined. Any ...