United States District Court, N.D. Ohio, Eastern Division
IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO Track One Cases MDL No. 2804
Aaron Polster Judge
the Court is Defendants' Motion to Exclude Expert
Testimony Purporting to Relate to Abatement Costs and Efforts
(“Abatement Motion”) (Doc. #: 1865). After
carefully considering Defendants' Motion, Plaintiffs'
Response (Doc. #: 2175), and Defendants' Reply (NOS at
Doc. #: 2443), the Court DENIES
Defendants' Abatement Motion.
Court hereby incorporates the legal standards set forth in
the Court's Opinion and Order regarding Defendants'
motion to exclude the opinion and testimony of Prof. Meredith
Rosenthal, see Doc. #: 2495.
their Abatement Motion, Defendants seek to exclude the
opinions and testimony of six of Plaintiffs' experts. The
Challenged Experts are Caleb Alexander, M.D., Jeffrey
Liebman, Ph.D., Katherine Keyes, Ph.D., Scott Wexelblatt,
M.D., Nancy Young, Ph.D., and Thomas McGuire, Ph.D.
(collectively “Challenged Experts”). As an
initial matter, Defendants do not assert any of the
Challenged Experts are unqualified to provide opinions on
methods or costs to abate the opioid crisis in Cuyahoga and
Summit Counties. Rather, Defendants assert the opinions of
these six experts are irrelevant and/or unreliable. The Court
has reviewed the qualifications of the Challenged Experts and
finds them qualified to testify on the topics regarding which
they have opined.
Defendants, Plaintiffs, and McGuire himself are all in
agreement that McGuire's report does not “offer an
opinion on the scope or costs of programs needed to abate
this nuisance.” McGuire Rep. at 5 n.6 (Doc. #:
1999-17); see also Defs. Mot. to Excl. Abate.
Experts at 41 (Doc. #: 1865-1); Pls. Opp. Resp. re Abate.
Experts at 53 (Doc. #: 2175). Therefore, to the extent that
Defendants' Abatement Motion seeks to exclude
McGuire's opinions on that specific topic, that portion
of Defendants' Motion is DENIED AS MOOT.
read the parties' briefs, the Court offers the following
general observation on the relevance of the Challenged
Experts' opinions. Defendants begin their Abatement
Motion with their interpretation of “abatement
law” in Ohio. In the very first paragraph, however,
they appear to confuse the forward-looking, equitable remedy
of abatement and the rearward-looking remedy of damages. In a
traditional public nuisance case, a municipal entity who is
harmed by the maintenance of a nuisance will give notice to
and ask the offending party to abate the nuisance. If the
offending party is unable or unwilling to abate, the harmed
party can, when appropriate, abate the nuisance themselves or
ask the court for the right to do so, and then seek
compensation for the costs of abating the nuisance. This
compensation is equitable in nature. The goal is not to
compensate the harmed party for harms already caused by the
nuisance. This would be an award of damages. Instead, an
abatement remedy is intended to compensate the plaintiff for
the costs of rectifying the nuisance, going forward.
opioid crisis litigation is, as this Court has repeatedly
stated, unlike any other case. One example is that the opioid
crisis is so massive that Plaintiffs cannot possibly hope to
remedy it on their own without additional, substantial
financial resources. If Defendants are eventually found
liable for creating the opioid crisis, there is no realistic
way the Court could order either that: (1) Defendants abate
the crisis themselves (Defendants do not have the requisite
infrastructure), or (2) Plaintiffs abate the crisis and then
order Defendants to pay Plaintiffs the costs incurred in
doing so (Plaintiffs do not have the financial resources).
Thus, the Court must, if Defendants are found liable, have
some mechanism to predict and fairly award prospective future
costs to abate the crisis.
Ohio, “[w]hen a nuisance is established, the form and
extent of the relief designed to abate the nuisance is within
the discretion of the court.” 72 Ohio Jur. 3d Nuisances
§ 49. Thus, the Court, exercising its equitable powers,
has the discretion to craft a remedy that will require
Defendants, if they are found liable, to pay the prospective
costs that will allow Plaintiffs' to abate the opioid
crisis. The issue, and thus the “pertinent
inquiry” to which a “valid scientific
connection” must be made under Daubert, will
be to determine what is an appropriate remedy that will abate
the opioid crisis, and what that remedy will cost. See
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592
to the motion at hand, Plaintiffs' experts have relied on
their training and expertise in various fields of
epidemiology, pharmaco-epidemiology, economics, data
analytics, medicine, and social work, to opine on what an
abatement remedy might look like and what such a remedy will
cost. That is, the Challenged Experts provide context that
the Court believes will be helpful in ultimately crafting an
abatement remedy should it be come necessary. Therefore, the
Challenged Experts' opinions are, as described further
below with respect to each expert, relevant to the facts of
this case. To the extent Defendants contend the Challenged
Experts' assumptions and conclusions are wrong, the
appropriate place to challenge them is on cross-examination.
See Burgett v. Troy-Bilt LLC, 579 Fed.Appx. 372, 377
(6th Cir.2014) (quoting Daubert, 509 U.S. at 596).
Alexander and Liebman
Caleb Alexander is a practicing physician and Professor of
Epidemiology and Medicine at Johns Hopkins Bloomberg School
of Public Health. He is a pharmaco-epidemiologist who studies
the uses and effects of drugs in well-defined populations. He
researches the utilization, safety, effectiveness and
regulation of prescription drugs, and has been studying and
addressing the opioid epidemic specifically for the past
eight years. See Alexander Rep. at 1 (Doc. #:
1999-1). Alexander was asked to “design and