Case: 1:17-md DAP Doc #: 19 Filed: 12/21/17 1 of 5. PageID #: 148 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Transcription

1 Case: 1:17-md DAP Doc #: 19 Filed: 12/21/17 1 of 5. PageID #: 148 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION IN RE: NATIONAL PRESCRIPTION ) MDL No OPIATE LITIGATION ) ) Case No. 17-md THIS DOCUMENT RELATES TO: ) ) Judge Dan Aaron Polster ALL CASES ) Plaintiffs Baptist Hospital, Inc. and Jay Hospital, Inc. s Response to Plaintiffs Motion to Approve Co-Leads, Co-Liasons, and Plaintiffs Executive Committee J. Nixon Daniel of Beggs & Lane (Pensacola, Florida) and T. Roe Frazer II of Frazer PLC (Nashville, Tennessee) represent certain hospitals and healthcare providers, individually, in the prescription opioids litigation. Two of those Plaintiffs, Baptist Hospital, Inc., and Jay Hospital, Inc. ( Hospital Plaintiffs ), are now squarely in this MDL and submit this Response to Plaintiffs Motion to Approve Co-Leads, Co-Liasons, and Plaintiffs Executive Committee 1. The purpose of this Response is to request the Court to add at least one seat to the Plaintiffs Executive Committee for hospital cases in this MDL. In accordance with the Court s telephonic conference held on December 13, 2017, counsel for plaintiffs in this MDL met on December 18, 2017 in Cleveland, Ohio. The purpose of the meeting, as undersigned counsel understood, was to consider, review, discuss, and decide upon proposals for the leadership of the PSC in this MDL. As a reminder to the Court, Mr. Daniel notified this Court of the need for separate tracks within this MDL for hospital cases. The Court seemed to agree with Mr. Nixon, responding, I think you are right. Transcript of Teleconference at p. 50. This is entirely appropriate, as this 1 Hospital Plaintiffs would like to notify the Court that the Amended Motion to Approve Co-Leads, Co-Liasons, and Plaintiffs Executive Committee inaccurately reflects that it was filed on behalf of Hospital Plaintiffs. Undersigned counsel has brought this error to Mr. Weinberger s attention but, as of the time of this filing, has yet to receive a response. 1

2 Case: 1:17-md DAP Doc #: 19 Filed: 12/21/17 2 of 5. PageID #: 149 MDL, at this very early stage, is heavily weighted with municipal and state government filed cases, whereas the hospitals and health care providers present claims distinct to them as plaintiffs. Moreover, hospitals and health care providers are not subject to a superior parens patriae (or similar) claims of the State Attorneys General cases or those of the Multi-State Coalition of States and Attorneys General. Even further, the JPML suggested at the hearing on establishing this MDL that separate MDLs might even be preferred for plaintiffs who are not State, county, or municipal governments, and that separate tracks might be warranted, too. The attorneys who led the meeting presented themselves and other attorneys who likewise represented municipal governments and county governments as the entire slate for an Executive Committee, liaison counsel, and co-lead counsel. In a PowerPoint presentation, the names of all 15 attorneys on the Plaintiffs Executive Committee, three liaison counsel, and three co-lead counsel were displayed as a complete slate, a total of 21 attorneys with some law firms with more than one representative. Significantly, to undersigned counsel s understanding, not a single attorney on the PowerPoint slate represents a filed hospital plaintiff in the MDL. Plaintiffs Motion to Approve Co-Leads, Co-Liaisons, and Plaintiffs Executive Committee, filed just yesterday (and amended today), is consistent with the PowerPoint slate presented at the meeting. Due to the different nature of the hospital claims and their respective damages, Hospital Plaintiffs respectfully request the Court to add at least one seat to the Plaintiffs Executive Committee and designate that seat for attorneys who represent hospital plaintiffs. To fill the hospital seat, Hospital Plaintiffs hereby propose and nominate J. Nixon Daniel and/or T. Roe Frazer II. (CVs attached hereto as Exhibit A). Hospital Plaintiffs believe that, as this MDL evolves from this very early stage, a significant number of additional hospital cases will be filed. Mr. Frazer s and Mr. Nixon s firms 2

3 Case: 1:17-md DAP Doc #: 19 Filed: 12/21/17 3 of 5. PageID #: 150 have many of these clients that undersigned counsel anticipates filing soon. At this early stage of the MDL, undersigned counsel believes that Plaintiff Baptist Hospital, Inc. is the largest hospital with a filed case in this MDL and perhaps the entire opioids litigation. Finally, Hospital Plaintiffs do not object to a single attorney on the proposed slate that was filed, but strongly believe that at least one more seat on the Executive Committee is warranted because of the reasons stated above. Undoubtedly, Hospital Plaintiffs concerns could, in part, be addressed by seats on the PSC (yet to be formed). Nonetheless, due to the role of the Executive Committee in this MDL as described by the presumptive co-leads and others, undersigned counsel believe that hospital plaintiffs need their own attorneys and independent representation for their unique claims on the Executive Committee. WHEREFORE, PREMISES CONSIDERED, Plaintiffs Baptist Hospital, Inc. and Jay Hospital, Inc. respectfully request the Court to add at least one seat to the proposed Plaintiffs Executive Committee and appoint Mr. J. Nixon Daniel and/or T. Roe Frazer II to fill this seat. Respectfully submitted, /s/ T. Roe Frazer II T. Roe Frazer II FRAZER PLC 1 Burton Hills Blvd., Suite 215 Nashville, TN (615) Fax: (866) roe@frazer.law /s/ J. Nixon Daniel, III J. Nixon Daniel, III BEGGS & LANE, RLLP 501 Commendencia Street 3

4 Case: 1:17-md DAP Doc #: 19 Filed: 12/21/17 4 of 5. PageID #: 151 Pensacola, FL (850) jnd@beggslane.com 4

5 Case: 1:17-md DAP Doc #: 19 Filed: 12/21/17 5 of 5. PageID #: 152 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21st day of December 2017, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. Copies will be served upon counsel of record by, and may be obtained through, the Court s CM/ECF system. /s/ T. Roe Frazer II T. Roe Frazer II 5

6 Case: 1:17-md DAP Doc #: 19-1 Filed: 12/21/17 1 of 3. PageID #: 153 T. ROE FRAZER II EXHIBIT A T. ROE FRAZER II is a lawyer with considerable trial experience in complex litigation and leveraging technology to achieve optimal results for his clients. He is the Managing Member of Frazer PLC (Nashville, Tennessee) and a member of the Tennessee Bar, the Mississippi Bar, and the Alabama Bar. In Mr. Frazer s 30 years of experience in complex litigation, he has successfully negotiated and recovered hundreds of millions of dollars for his clients in mass tort and complex litigation settlements. He has also tried dozens of jury trials, winning numerous multi-milliondollar verdicts. He was selected as Outstanding Trial Lawyer of the Year by the Mississippi Trial Lawyers Association in He has a Martindale, AV+ rating and is a frequent speaker and writer on a variety of legal and technology topics. Mr. Frazer also serves on the Evolving Legal Market Committee of the Tennessee Bar Association. FRAZER PLC Litigation practice centered on representing companies, healthcare providers, and individuals in complex litigation matters, as well as consulting on data and e-discovery challenges. Education J.D., Cumberland School of Law (1985), Samford University, Birmingham, Alabama Editor-in-Chief, Cumberland Law Review Co-Captain, National Moot Court Team Member, Order of Barristers B.A., Politics, Wake Forest University (1982), Winston-Salem, North Carolina Distinctions and Memberships Member, Dean s Advisory Board, Cumberland School of Law, Samford University, Birmingham, Alabama (2001-present) Member, American Bar Association, Tennessee Bar Association, Nashville Bar Association, Mississippi Bar, and Alabama Bar Association Admitted to practice before the United States Supreme Court, the Mississippi Supreme Court, the Alabama Supreme Court, the Tennessee Supreme Court, the Fifth and Sixth U.S. Circuit Courts of Appeals, and the U.S. District Courts for the Southern and Northern Districts of Mississippi, the Northern and Southern Districts of Alabama, the Middle District of Tennessee, and other U.S. District Courts.

7 Case: 1:17-md DAP Doc #: 19-1 Filed: 12/21/17 2 of 3. PageID #: 154 Beggs & Lane, RLLP Beggs & Lane, RLLP is headquartered in Pensacola, Florida, and is Florida s oldest law firm. For more than 130 years, Beggs & Lane has represented a broad and diverse client base, including major corporations, businesses, professionals, non-profit organizations, and individuals. Our attorneys serve a wide range of industries, including energy and public utilities, health care, financial services, manufacturing, real estate and construction, insurance, and transportation. J. Nixon Daniel is the managing partner of Beggs & Lane. He is AV rated, the highest under Martindale-Hubbell's peer review rating system. Nix has practiced law in Pensacola for over 30 years, litigating in both state and federal courts. Mr. Daniel has extensive experience representing hospitals and other medical providers. He has served as general counsel to a hospital and other significant health care providers throughout his career. His broad litigation experience includes significant personal injury claims, wrongful death litigation, class actions and business litigation. In recent years he has been lead counsel or co-lead counsel in class action claims involving fiber optics, the proper reimbursement of health care providers by payers, and property matters. Recently, he was lead counsel for a large group of hospitals as plaintiffs in a litigation claiming reimbursement from a major third party payer, which resulted in a favorable settlement. Mr. Daniel has tried over 100 cases to verdict and has been involved in many others that were settled at mediation or otherwise prior to trial. His litigation experience includes both the representation of defendants and plaintiffs. Bar Admissions Florida, 1977 U.S. District Court Northern District of Florida, 1977 U.S. Court of Appeals 11th Circuit, 1981 U.S. Court of Appeals Federal Circuit, 2006 Texas, 2014 University of Florida College of Law, Gainesville, Florida, J.D. (With Honors, Order of the Coif) Wake Forest University, Winston Salem, North Carolina, B.A. (Magna Cum Laude) 1974, Phi Beta Kappa, Honors: Omicron Delta Epsilon (Economics) Representative Clients Baptist Health Care Corporation Mag Mutual Insurance Company Gulf Power Company Southern Company

8 Case: 1:17-md DAP Doc #: 19-1 Filed: 12/21/17 3 of 3. PageID #: 155 City of Pensacola, Florida American Waterworks Company Professional Associations and Memberships Florida Bar Association, Member, Present American Health Lawyers Association, Member, Present