Governments in the opioid litigation scored a huge victory in October when U.S. Magistrate Judge David A. Ruiz released his report and recommendation on the motions to dismiss filed by manufacturer, distributor and retail chain pharmacy defendants. This came in the suit filed by Summit County, Ohio. Several Ohio cities were also included in the motion, including the city of Akron. Summit County is one of three bellwether trial cases in the multidistrict litigation (MDL) and the first to face a motion to dismiss in the MDL court.
The report to District Court Judge Aaron Polster recommends that the bulk of the claims against the Defendants survive the motion to dismiss. Judge Ruiz recommended dismissing one claim and partially dismissing another of the complaint’s 11 claims. He recommended dismissing the county’s common law nuisance claim, finding that the State’s Product Liability Statute abrogated common law nuisance law involving a nuisance caused by a manufacturer or seller’s product.
The judge also recommended dismissing drug-related nuisance claims brought by the City of Akron, because the statute vested enforcement authority with counties, the State, and the Board of Pharmacy but not city governments. These are relatively narrow grounds based on nuances on local law rather than any overarching defect in the government’s claims.
The other nine claims for relief, including claims under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §1961 et seq, also known as RICO, remain. The RICO claims, in a nutshell, involve allegations that Defendants cooperated in their marketing of opioid products despite the dangers these drugs pose to the population.
Earlier that same week, the State of New Jersey’s case against Purdue Pharma also survived a motion to dismiss largely intact. However, the court found that New Jersey’s nuisance claim was foreclosed by the State’s Product Liability Act, and that the statute of limitations foreclosed any liability for the Defendant’s actions prior to Oct. 31, 2007. That case is proceeding in the Essex County Superior Court in New Jersey. New Jersey’s case is one of the first states to receive a ruling on a motion to dismiss in the nationwide opioid litigation.
The State of Alabama, the counties of Summit (Ohio); Cabell (West Virginia); Monroe, Michigan, and Broward (all Florida) and the City of Chicago were all selected as bellwether cases for motion to dismiss practice to determine the viability of threshold legal issues that may assist in the settlement negotiations and to prepare the test cases for trial in the event that a settlement does not occur. Judge Polster selected cases that represent a variety of jurisdictions, Plaintiffs, Defendants and issues. Summit and Cuyahoga counties and the City of Cleveland were selected to conduct discovery and prepare their cases for trial, which has tentatively been set for late 2019. The State of Alabama is gearing up in expectation that it will be appointed as a bellwether case in the second round of bellwether trials. Alabama is the only state currently litigating its case in the MDL.
Alabama has been particularly hard hit by the crisis. The state has one of the highest prescription rates for opioids in the nation, with 1.2 prescriptions per person, nearly twice the national average of 0.72 prescriptions per person. According to the National Institute on Drug Abuse, there were 343 opioid-related overdose deaths in Alabama in 2016, and at least 282 deaths were attributed to opioid overdoses in Alabama the previous year.
The effects of the opioid epidemic on a national level are startling. A study published in the journal JAMA Network Open suggests opioid abuse in the U.S. is now responsible for 20 percent of deaths among young adults — up from just 4 percent in 2001 — a far greater pace than any other age group. Comparatively, one in every 65 adults in the U.S. suffered deaths associated with opioids in 2016 — a 292-percent increase since 2001. Due to the continued deterioration of the addiction crisis nationwide, the researchers concluded the U.S. lost a total of 1,681,359 years of life in 2016 alone.
But loss of life isn’t the only toll the opioid crisis takes on communities. According to the Centers for Disease Control and Prevention (CDC), the opioid epidemic costs the U.S. about $78.5 billion a year in health care, lost productivity, addiction treatment, and criminal justice involvement.
Hundreds of cases are currently pending in the opioid MDL filed by cities, counties, states and even Indian tribes accusing manufacturers and distributors of the powerful painkillers, and pharmacies, of inflating the effectiveness of the medications and downplaying their addictive properties, creating conditions ripe for abuse and misuse. As a result, the lawsuits claim, tens of thousands of citizens have died or required medical care, creating a crippling financial burden to communities across the country.
In 2017, the U.S. government declared the opioid epidemic a national public health emergency. Earlier this year, Attorney General Jeff Sessions announced a new Prescription Interdiction & Litigation (PIL) Task Force established by the U.S. Department of Justice (DOJ) to aggressively coordinate all available criminal and civil law enforcement tools to reverse “the tide of opioid overdoses in the United States.” The task force will focus on the activities of opioid manufacturers and distributors. Twelve assistant U.S. attorneys were assigned to spend three years focusing exclusively on investigating and prosecuting health care and fraud related to prescription opioids.
Sources: Law360.com and U.S. District Court of Ohio
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This story is featured in the November 2018 edition of The Jere Beasley Report. To read more like this or to subscribe to the Report, visit our Publications page.