Drug companies defending opioid lawsuits have fired back in the federal court handling the sprawling litigation, insisting that cities and counties lacked standing to bring several of the claims, some of which were pre-empted.
The companies—manufacturers and distributors of the prescription painkillers, and retail pharmacies—outlined their defenses in motions to dismiss lawsuits brought by the cities of Cleveland and Chicago, and two Ohio counties. More motions are due this week in additional cases brought by counties in Florida, Michigan and West Virginia.
U.S. District Judge Dan Polster, the Cleveland federal judge overseeing multidistrict litigation over the opioid crisis that now has surpassed 700 lawsuits, selected those cases for limited discovery.
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“There is no question that the opioid crisis involves issues that merit immediate attention and creative problem-solving,” wrote the manufacturers in one of two motions. “Plaintiffs do not and cannot, however, allege a viable legal theory to recover their alleged governmental costs, lost tax revenue, or any other alleged damages from the manufacturer defendants.”
Co-lead plaintiffs attorneys in the opioid 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 about the dismissal motions. “The motions filed by the defendants mirror those filed in other actions across the nation, and we are hopeful they will be met with the same lack of success as before,” they wrote.
On Monday, Polster assigned U.S. Magistrate Judge David Ruiz of the Northern District of Ohio to review the dismissal motions and come out with a report and recommended decisions. He has also assigned two mediators, David Cohen and Cathy Yanni, to discovery disputes and depositions.
Despite allowing some discovery, Polster told lawyers at a rare public hearing last month that he remained focused on settling the opioid litigation.
But plaintiffs amended many of the complaints last month after getting information from a drug database controlled by the U.S. Drug Enforcement Agency. That prompted motions to dismiss filed by manufacturers Johnson & Johnson’s Janssen Pharmaceuticals Inc., Purdue Pharma, Endo Health Solutions, Teva Pharmaceuticals, Allergan, Insys Therapeutics Inc., Mallinckrodt and Noramco; distributors AmerisourceBergen Corp., Cardinal Health and McKesson Corp.; and four pharmacies: Rite Aid Corp., Walgreens, Walmart Inc. and CVS.
Most of the defendants have publicly insisted they weren’t to blame for the opioid epidemic.
In motions filed on May 25, the defendants generally alleged the cities and counties lacked standing to sue in federal courts—either because they had no authority or failed to allege the appropriate injuries in order to do so. They also argued that since the U.S. Food and Drug Administration approved opioids, federal regulations pre-empted the state law claims.
They took particular aim at allegations that they violated the U.S. Racketeer Influenced and Corrupt Organizations Act, arguing that the government entities had failed to prove they suffered “business or property” injuries or that a racketeering enterprise existed. Also, the complaints make no “causal link” to the companies, they wrote, given that third parties, like doctors, pharmacists, patients and criminals, played key roles in the opioid crisis.
“Plaintiffs seek to hold the manufacturer defendants liable for a litany of social problems,” the manufacturers wrote. “Despite the breadth of this theory, however, plaintiffs rely upon nothing but conclusory statements and plead virtually no facts to establish the requisite causal link to support it.”
Defense papers placed emphasis on the word “facts.”
They also wrote that there was no “public right” allegedly violated under public nuisance laws. They cited previous failed attempts to bring public nuisance claims against manufacturers of guns and lead paint, and mortgage lenders linked to widespread foreclosures in 2008.
“The opioid epidemic is a pressing social issue, but there is no public right to be free from prescription drugs that are allegedly deceptively marketed, mis-prescribed, or misused,” the distributors wrote. “The ‘right’ to be safe from defective products is an individual right.”
In a joint motion, the pharmacies criticized the plaintiffs’ “blunderbuss approach, naming as defendants a broad range of companies involved in the manufacture and distribution of these medicines across the supply chain.” All but Walmart have filed separate motions to dismiss based on lack of personal jurisdiction.
Here are some additional arguments in the motions:
- Opioids come with clear risks of addiction and overdose.
- The complaints fail to allege a specific misrepresentation on which a doctor relied in writing an opioid prescription.
- Companies had a duty to the DEA, not the plaintiffs, to monitor suspicious drug orders.
- Plaintiffs failed to allege unjust enrichment because they conferred no benefit on the companies.
- Participation in a trade association did not show a civil conspiracy among the companies.