A Hartford District Superior Court judge has dismissed lawsuits by Connecticut cities against various opioid makers and distributors, concluding that allowing them to survive would lead to “junk justice” and “causation by conjecture.”
Tuesday’s colorfully worded ruling, by Judge Thomas Moukawsher, applies to four cases that were consolidated but is anticipated to wipe out lawsuits brought by 37 cities in Connecticut. It is among a handful of court decisions in cases across the country over the opioid epidemic, which has led to skyrocketing rates of addiction and death. In the Connecticut cases, the judge found that the cities, which included Danbury, Bridgeport and New Haven, had failed to draw a direct connection between their rising costs and the actions of the 25 defendants, which are manufacturers and distributors of the prescription painkillers.
“Why should this be so? Haven’t they suffered? Haven’t we all suffered? At least in some indirect way? All probably true,” he wrote. “But can all of us line up in court and ask for our personal share of the extra taxes, declining property values, rising crime rates and personal anguish we suffer from the addictions surrounding us? Not if we want a rational legal system.”
Moukawsher said law enforcement agencies, not cities bringing a “flurry” of civil suits, should represent the public in such cases. “To permit otherwise would risk letting everyone sue almost everyone else about pretty much everything that harms us,” he wrote.
Moukawsher also had some choice words for the plaintiffs. After two days of arguments on the motions to dismiss, he wrote “it became apparent that the plaintiffs filed these lawsuits without first thinking of a way to sort out the causation conundrum. Indeed, the best they could do was to say that in some other cases in some other place someone is said to be working on something about it.”
The ruling stood apart from a handful of decisions in state court cases where judges have refused to dismiss similar cases.
“Plaintiffs are disappointed by the court’s ruling, which we believe is materially incorrect,” wrote Paul Hanly of Simmons Hanly Conroy in New York, who represented most of the Connecticut cities. “Plaintiffs are weighing their options, including appeal of the ruling.”
Opioid manufacturer Purdue Pharma said in an emailed statement: “We commend the judge for applying the law and concluding that opioid manufacturers cannot be legally responsible to cities for the indirect harms they claim they experienced as a result of the opioid crisis.”
Lawyers for the other defendants, which include Johnson & Johnson, McKesson Corp. and Cardinal Health Inc., did not respond to requests for comment.
In Connecticut, as in most states, the cities brought separate suits from the Attorney General’s Office. Last month, Connecticut Attorney General George Jepsen brought an opioid case against Purdue Pharma and 16 of its current and former executives.
The federal judge in the multidistrict litigation over opioids, which now involves 1,500 lawsuits, also allowed most of the claims to go forward last month in a set of bellwether cases brought over what he called “a man-made plague.”
Moukawsher acknowledged those rulings. However, the judge found he was bound to follow a 2001 decision by the Connecticut Supreme Court in Ganim v. Smith & Wesson that, in dismissing the city of Bridgeport’s case against gun manufacturers, outlined a set of factors needed to prove direct causation in order to establish standing to sue.
The expenses cited by the Connecticut cities allegedly tied to opioids, Moukawsher wrote, were a “long radius and many concentric circles away from the simple observation that promoting more addiction creates more addicts.”
“Measured link by link, this case is just like Ganim and Ganim held these links too attenuated to support a claim,” he wrote. “As in Ganim, complicated rules would also be required here to sort out who caused what. Blindingly complex ones.”
He also found that, cases in other states that so far have survived motions to dismiss have failed to address how to distribute funds should the defendants be held liable.
“Any distribution of money among the cities would look more like the distribution of alms from the community chest than like the judgment of a court of competent jurisdiction,” he wrote.
In the Connecticut cases, Moukawsher wrote, the cities failed to address not only each defendant’s potential contribution but identify the specific municipal costs tied to the opioid epidemic—as opposed to, for example, alcohol abuse, the economy, funding cuts, medical expenses or other problems.
“It’s certainly been a drag on the court’s willingness to believe that there is a credible case for causation when, despite the court begging them for one, the plaintiffs couldn’t suggest even a possible way to calculate the degree of individual causation in this case,” he wrote.
In concluding his order, Moukawsher wrote that civil cases are poor solutions for social problems like the opioid epidemic. Government regulators and law enforcement, which can impose fines and penalties without having to address damages questions, were “better situated” in bringing civil and criminal actions against the opioid defendants, he wrote.
“It might be tempting to wink at this whole thing and add to the pressure on parties who are presumed to have lots of money and possible moral responsibility,” he wrote. “But it’s bad law.”