A federal magistrate judge has recommended that a key lawsuit brought over the opioid epidemic go forward, refusing to dismiss the case against several opioid manufacturers and distributors, as well as pharmacies.
U.S. Magistrate Judge David Ruiz, who is working with U.S. District Judge Dan Polster in the opioid multidistrict litigation, which is in the Northern District of Ohio, issued his report and recommendation on Friday. The order keeps in place a consolidated complaint’s racketeering claims and rejected the idea that local governments, rather than addicted individuals, didn’t have standing to sue the defendant companies for conspiring through their marketing and distribution of the prescription painkillers, which have caused addictions and deaths throughout the country.
“Plaintiffs, local governments, have been impacted by the opioid epidemic,” he wrote. “Their injuries, alleged to be caused by the defendants’ conspiracy to dramatically increase the usage and supply of opioids for off-label purposes, to some extent, stem from ills associated with opioid use and/or addiction. The connection between their injuries and the defendants’ alleged racketeering and fraudulent activity is not so attenuated, as their injuries plainly stem from opioid use/abuse and not some possible other source. This court cannot find, absent any discovery, that plaintiffs’ injuries were incidental to the alleged fraud or the oversupply/diversion of opioids. While defendants’ alleged actions caused harm to others (i.e. those who became addicted to opioids), the ensuing harm to plaintiffs—the costs associated with responding to and working to stem the opioid epidemic—cannot be deemed incidental.”
Three lawyers on the plaintiffs’ leadership committee of the multidistrict litigation—Paul Farrell of Greene, Ketchum, Farrell, Bailey & Tweel in Huntington, West Virginia; Paul Hanly of Simmons Hanly Conroy in New York; and Joseph Rice of Motley Rice in Mount Pleasant, South Carolina— issued a statement responding to the ruling: “This is a major step forward for the over 1,000 communities working to hold the pharmaceutical industry accountable for the countless lives that have been lost to opioid addition. This litigation is the most effective way to secure the resources communities need to address the opioid epidemic for decades to come. We anticipate Judge Polster will issue a final ruling on these motions at the earliest possible time.”
The defendants filed motions to dismiss earlier this year in the consolidated complaint, which combines claims by various bellwether cities and counties in Ohio, Illinois, Florida, Michigan and West Virginia.
The ruling also refused to grant dismissal on federal pre-emption grounds but did recommend tossing some of the public nuisance claims.
Earlier this week, a state court judge tossed public nuisance claims in the state of New Jersey’s case against opioid maker Purdue Pharma.
In August, however, another state judge refused to dismiss claims in the state of Ohio’s case.