More than a dozen defendantsface numerous claims at next month's trial, which will take placein Cleveland.  (AP Photo: Douglas Healey,File)

Manufacturers of prescription opiates lost a key ruling Mondayinvolving public nuisance claims as pressure against them mountsahead of a closely watched trial next month.

U.S. District Judge Dan Polster of the Northern District ofOhio, who will oversee the Oct. 21 jury trial, refused to tossclaims that the opioid manufacturers, which include Purdue Pharmaand Johnson & Johnson, created a public nuisance. The ruling applies to two Ohiocounties serving as plaintiffs in the first federal trial over theopioid crisis.

"Plaintiffs introduce fact and expert evidence demonstratingmaterial factual issues regarding interference with public healthand public safety interests," he wrote Monday. Among that evidenceare statistics of opioid-related increases in overdose deaths,instances of neonatal abstinence syndrome, overdose hospitaladmissions and emergency room visits, and crisis centerdetoxifications.

"A factfinder could reasonably conclude that this evidencedemonstrates an interference with public health and public safetyrights," he wrote.

Related: Purdue proposes $11.5B opioidsettlement

Mark Cheffo, a partner at Dechert in New York, who serves asco-liaison counsel for the manufacturers and representsConnecticut-based Purdue Pharma, did not respond to a request forcomment.

"With six weeks until the first federal opioid trial begins inOhio, Judge Polster has issued an emphatic order that strengthensthe claims of American communities when he allowed the plaintiffs''public nuisance' claim to move forward," said co-leadlawyers for the plaintiffs' executive committee: Paul Farrell ofGreene, Ketchum, Farrell, Bailey & Tweel; Paul Hanly of SimmonsHanly Conroy; and Joe Rice of Motley Rice. "This clearsthe runway for the communities we represent to demonstrate, withevidence, exactly how opioid manufacturers and distributors createda massive public health epidemic that endangered our entirecountry."

The ruling is the latest of several summary judgment orders thatPolster has issued ahead of the trial, nearly all in favor of theplaintiffs. They include a finding that a jury could conclude,based on the evidence, that the defendants, which also includeopioid distributors, caused the opioid epidemic.

It also comes as settlement talks broke down over the weekend betweensome state attorneys general and Purdue's founders, who are membersof the Sackler family, according to news reports, and as anothermanufacturer, Mallinckrodt Pharmaceuticals, reached a $30 millionproposed deal with the two Ohio counties.

More settlements could be underway, said Carl Tobias, aprofessor at the University of Richmond School of Law.

"I expect they're thinking how to mount a defense, if they can,and whether their exposure to liability is sufficiently great thatthey need to settle and probably sooner rather than later," he saidof the remaining defendants. "So, as we get closer to trial, andmore settle out, it seems to me the dynamics will move more peopletoward settlement, and it's not clear how many will be left at theend and who it will be. My sense is it's likely to be some of thebigger players."

More than a dozen defendants face numerous claims at nextmonth's trial, which will take place in Cleveland. On Aug. 15,Polster granted the plaintiffs' motion to sever some defendantsfrom the trial, including Rite Aid and CVS.

Among the most critical allegations is that of public nuisance,the only allegation in the first trial in the nation over theopioid crisis: a bench trial between the state of Oklahoma andJohnson & Johnson that ended last month with a $572 million judgment.

Recent settlements, such as that with Mallinckrodt, have focusedon resolving the claims of the two plaintiffs in the federal trial,Cuyahoga County and Summit County.

"The agreement, if approved, will provide both countiescritically-needed resources in the ongoing response to the opioidcrisis as well as protection in any future insolvencyproceeding by Mallinckrodt," said members of theplaintiffs' executive committee at the time of the Sept. 6announcement of the settlement. "No one wants the result of thislitigation to be mere bankruptcy of companies, but pharmaceuticalmanufacturers, distributors, and pharmacies that participated increating the opioid epidemic or knowingly profited from themisconduct must actively participate in abating and helpingcommunities recover from this public health crisis."

Other defendants, Endo International and Allergan, reachedsettlements last month totaling $15 million.

But those settlements don't resolve claims inadditional trials, which Polster has lined up as part ofmultidistrict litigation that includes about 2,000 cities andcounties suing opioid companies.

"They have to think about, 'so what'?" Tobias said of thedefendants. "So, they get out of this one, then what? And how manybellwethers do we need to get to some bigger settlement? And isthere going to be money left? And that's all hard to tell."

In Monday's public nuisance order, Polster rejected the argumentfrom the manufacturers that illegal drugs, and not their products,caused the opioid crisis, or that their actions wereunintentional.

On the latter argument, Polster noted the testimony of Dr.Russell Portenoy, a key opinion leaders paid by the manufacturers,who said manufacturers intentionally misrepresented the risks ofopioid use. He also cited the deposition of Richard Sackler, one ofPurdue's founders, which indicated that his company falselyrepresented OxyContin as appropriate for pain managementthat requires a lower intensity than morphine or for treatmentsless severe than cancer.

Last week, Polster denied the plaintiffs' motion for summaryjudgment on their public nuisance claims. He also found that jointand several liability for abatement costs was a question for thejury.

"Whether the opioid crisis constitutes a public nuisance is aquestion that must await full airing of the facts at trial," hewrote.

Read more: 

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• Insys CEO convicted of opioidracketeering
• Big Pharma marketing tied to opioiddeaths