A federal judge’s report and recommendation in a key case over the opioid crisis could, if approved, bode well for cities and counties suing prescription painkiller manufacturers and distributors.
U.S. Magistrate Judge David Ruiz of the Northern District of Ohio on Oct. 5 allowed most of the claims to go forward in a case brought by Summit County and the city of Akron against manufacturers and distributors of opioids, plus several pharmacies. He found that, despite the insistence of defendants that the complaint lacked details, the case was far from a “fishing expedition.”
“Defendants’ motion to dismiss demands an untenable level of specificity above and beyond the pleading rules,” Ruiz wrote. “Plaintiffs cannot be expected to plead the minutiae of their case without the benefit of discovery.”
The report is the first to go before U.S. District Judge Dan Polster, who is overseeing the opioid multidistrict litigation in Cleveland. If approved, the report could influence more than 1,200 lawsuits primarily brought by cities, counties and other municipalities to recoup governmental costs tied to the epidemic, which has caused a surge in deaths and addictions.
Lead plaintiffs lawyers in 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—called the report a “major step forward” in the MDL. It could also prove tough for the defendants going forward, Carl Tobias, a professor at the University of Richmond School of Law, told Law.com.
“[Ruiz] seems less worried about the particulars and a lot of specifics, given what he perceives to be their behavior in playing a large role,” Tobias said, “He feels the cause-and-effect linkage is made, at least preliminarily. That’s not good news for the defendants.”
Striking down some key legal defenses, Ruiz allowed claims like negligence and fraud to go forward.
Richard Ausness, a professor at the University of Kentucky College of Law, who has been following the opioid litigation, said the report came as little surprise.
“It was interesting that so much of the report dealt with the RICO claim,” he wrote in an email. “That is probably the plaintiffs’ strongest claim. The refusal to dismiss the fraud, civil conspiracy and negligence claims is to be expected since they involve so many factual issues.”
Ruiz spent nearly half his 103-page report on claims brought under the U.S. Racketeer Influenced and Corrupt Organizations Act. In what he called a “crucial question in this litigation” he disagreed with defendants that the RICO claims were derivative of the personal injuries of addicts and, therefore, not “business or property.” Plaintiffs had alleged injuries such as public expenditures and lost tax revenue.
“Defendants’ contentions turn a blind eye to allegations that allege much more,” Ruiz wrote. He also refuted defendants’ claims that the plaintiffs had to name specific doctors who prescribed the painkillers. And he found that the contributions of prescribing doctors and criminals involved in illegal drug use did not negate the defendants’ role in contributing to the epidemic.
“Plaintiffs, local governments, have been impacted by the opioid epidemic,” Ruiz wrote. “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.”
Ruiz also ruled out federal pre-emption since the state law claims are “not premised upon inappropriate labeling or a fraud upon the FDA, but rather fraudulent marketing in the promotion and sale of their opioids.”
The report did give some help to defendants in dismissing some public nuisance claims due to the Ohio Product Liability Act.
Most of the manufacturing defendants, which include Purdue Pharma, Endo Health Solutions and Teva Pharmaceuticals, declined to comment or did not respond when asked about the report.
Janssen Pharmaceuticals Inc., a division of Johnson & Johnson, wrote in an email: “Our actions in the marketing and promotion of these medicines were appropriate and responsible. The labels for our prescription opioid pain medicines provide information about their risks and benefits, and the allegations made against our company are baseless and unsubstantiated.”
A spokesperson for the Healthcare Distribution Alliance, which represents distributors AmerisourceBergen Drug Corp., Cardinal Health Inc. and McKesson Corp., did not respond to a request for comment.
Much of the report’s findings were similar to an Aug. 22 decision by a state judge who refused to dismiss claims in the state of Ohio’s case. In both cases, the judges looked to a 2002 decision by the Ohio Supreme Court, in City of Cincinnati v. Beretta USA, in which the city of Cincinnati brought similar claims against gun manufacturers.
There also have been other dismissal orders in opioid cases outside the MDL. On Oct. 5, a state court judge in Tennessee granted dismissal in a case involving seven district attorneys suing opioid manufacturers on behalf of counties and cities. The judge disagreed that the defendants were running an “illegal drug market” in violation of the Tennessee Drug Dealer Liability Act.
On Oct. 2, a state court judge tossed public nuisance claims in the state of New Jersey’s case against opioid maker Purdue Pharma but allowed other claims to go forward.
State court judges in the state of Alaska’s case and a consolidated action by several New York counties have refused to dismiss their claims against opioid companies.
In the MDL, the defendants have filed motions to dismiss in several other bellwether lawsuits, including those by various cities and counties in Illinois, Florida, Michigan and West Virginia, as well as the state of Alabama. Native American tribes and hospitals also face motions to dismiss consolidated complaints. Decisions on those motions could be soon.
“The first one is always important, but with MDLs it’s not the last word because there will be other bellwethers,” Tobias said.