Last year was big! Cities, counties and states began bringing major lawsuits against “Big Pharma” companies for their marketing and distribution of pain killers like Oxycontin, Oxycodone, and their generics and derivatives.
Legal scholars and reporters are comparing opioid litigation to the tobacco litigation of the 1990’s. That means the litigation is just beginning and the lawsuits are going to keep on coming!
Whether you're counsel for plaintiff or defense, your case and litigation strategy will be deeply impacted by legal intelligence and data-driven litigation insights, often referred to “judicial analytics.”
What do we mean by legal intelligence? Simple. Would you benefit by knowing how your state trial court judge has ruled on motions in the past? Would it be helpful to know which judges in Orange County, California, have presided over recent opioid litigation? Trends for similar litigation across the state, or within Multi State Litigation.
According to the Tobacco Master Settlement Agreement, original participating manufacturers agreed to pay a minimum of $206 billion over the first 25 years. That agreement went into effect in 1998. Last year, 72,000 people died from an opioid overdose. With a massive death toll and inflation, pharmaceutical manufacturers and distributors are looking at potentially devastating payouts and counsel is looking at a massive influx on suits.
Based on data sourced from Trellis' legal intelligence platform, only two judges have heard such cases in Orange County since 2017! And even between those judges, rulings on similar motions sometimes led to disparate results.
To help makes sense of thousands of different rulings, and the fact patterns they are based upon (a task that no human could effectively complete), Trellis provides in-depth judicial analytics known as Trellis: Judicial Strategy Reports (JSR). Trellis' JSRs provide attorneys a never before seen peek behind the curtain as to how specific judges have ruled on various motion in the past.
For instance, one of the judges presiding over opioid litigation has granted 16 of the last 30 motions presented to her. In Orange County, this places this judge in the 72nd percentile for granting motions of all types. Whereas as her counterpart, another judge presiding in Orange County tends to sustain demurrers only 42% of the time. Knowing whether (and how often) your judge sustains demurrers across various case types can not only help you make strategic decisions about what motions to bring and when, but can even help you craft a more successful motion. Searching through your judge's rulings on similar demurrers will provide the framework from which to draft a successful motion, even down to citing to the judge's preferred case law when possible.
Legal intelligence is changing the game. And this type of legal intelligence isn't just limited to analytics on demurrers and dispositive motions (as massively impactful as those insights might be), instead, Trellis' Legal Intelligence database allows attorneys to search through their judge's language on similar substantive rulings, providing context, and deeper substantive analysis making legal research more effective and more practical. Analytics in a vacuum aren't actionable.
For defense counsel in high-value opioid litigation, as the legal implications and number of additional cases filed continue to grow, you'll likely want to understand how your judge has ruled on issues involving the False Advertising Law (FAL), one of the many claims against defendants in opioid litigation. Some of you may be interested to discover that a judge in one such case found the complaint “sufficiently alleged each of the defendants have violated the FAL within the last three years and continues to do so.” For defense counsel armed with this knowledge, and further strategic litigation insights (including searching through the largest database of CA state court rulings currently available) counsel's chances at persuading a specific superior court judge increase almost exponentially.
For those attorneys outside of CA considering pro hac vice admission to represent a party in opioid litigation, Trellis found that an Orange County judge involved in similar litigation was particularly strict on counsel's failure to properly apply to represent one or more of the co-defendants (see People v. Purdue Pharma LP). Recognizing a judge's pet peeves and technical and evidentiary requirements prior to drafting a particular motion can mean the difference of a successful outcome. Obviously, failing miserably in multiple facets of the pro hac vice application would be harmful to your client (and likely to your reputation). Your client may even begin looking for local counsel to represent them if they perceive that the judge is already disheartened by out-of-state counsel who has trouble following the California Rules of Court. Certainly, the stakes are high.
For litigators involved in opioid litigation with big pharma, legal intelligence and judicial analytics may make the difference for your client and your case, setting you apart from antiquated litigators relying only on their trusty yellow pad.