Blame the criminals, pharmacies facing opioid lawsuits say

By John O'Brien | Jun 8, 2018

CLEVELAND (Legal Newsline) – Large pharmacy chains are asking why they are being sued by hundreds of cities and counties over the opioid crisis instead of the criminals who pushed drugs to addicts.

CLEVELAND (Legal Newsline) – Large pharmacy chains are asking why they are being sued - instead of the criminals who pushed drugs to addicts - by hundreds of cities and counties over the opioid crisis.

Walmart, Rite Aid, Walgreens and CVS recently made their argument to have the claims against them dismissed by an Ohio federal judge overseeing the nationwide multi-district litigation proceeding. Plaintiff counties and cities, as well as other entities, are seeking to recover from manufacturers and distributors the costs associated with the opioid crisis.

But the pharmacies are wondering how they fit in, mixing their technical legal arguments with an attempt at a common-sense point of view that they can’t be held accountable for what was done with the prescriptions they filled.

“Rather than focusing on the prescribing practices and criminal diversion that actually resulted in opioids ending up in the hands of unintended users, however, Plaintiffs have chosen a blunderbuss approach, naming as defendants a broad range of companies involved in the manufacture and distribution of these medicines across the supply chain,” a motion to dismiss filed May 25 says.

“Despite telling a story that may cry out for executive or legislative action and policy-making, the complaint fails the fundamental requirement of plausibly alleging specific, actionable conduct against (the pharmacy chains).”

A flurry of motions to dismiss was filed that day, including one from AmerisourceBergen, Cardinal Health and McKesson. Those companies argued:

-Racketeering claims should be dismissed because injury to business or property is not alleged, and neither is any corrupt activity;

-Public nuisance claims fail to allege a public right with which distributors interfered; and

-Negligence claims should be dismissed because the lawsuits fail to allege a duty owed by the distributors to the plaintiffs.

The pharmacies say they’d like to incorporate those arguments into their motion, but they don’t stop there, claiming the plaintiffs are suing over activity that was compliant with state and federal regulations.

“Further, any possible link is broken by countless intervening acts – including by, for example, physicians who improperly prescribed the drugs, individuals who illegally supplied the opioids to third parties, and persons who abused the drugs,” the motion says.

U.S. District Judge Dan Polster has been outspoken in his desire for the MDL to lead to a nationwide settlement, saying in January “people aren’t interested in depositions, and discovery, and trials.” 

Polster has ordered a trio of bellwether trials to begin in 2019. The sprawling nature of the opioid litigation, with hundreds of plaintiffs and a still-expanding roster of defendants, has made it particularly challenging to contain within traditional legal procedures. 

Polster has assigned three special masters to work with the parties and one of them, David Cohen, called it “obviously one of the most, if not the most, complex pieces of litigation that the federal court system has seen.”

In addition to their municipal clients, plaintiff lawyers are seeking class action status for lawsuits over infants with an addiction-related syndrome and increased health insurance premiums. Opioid defendants also face parallel litigation in state courts. The proliferation of lawsuits will make it difficult to negotiate a settlement that protects the defendants against future liability, one of the crucial aspects of the 1998 master tobacco settlement that many observers see as the model for opioid litigation.

State attorneys general have also gotten involved, with some hiring private lawyers on a contingency fee and others using their own staff.

Walmart, Rite Aid, CVS and Walgreens, meanwhile, are trying to eject themselves from the MDL. There are no claims in the complaints against them in their roles as pharmacies, they say.

They’re facing “a handful of vague allegations” instead, they claim.

“Plaintiffs do not allege that the (pharmacies) ever sold or distributed anything directly to them or ever did anything that caused Plaintiffs any direct harm,” their motion says.

“Instead, according to Plaintiffs, their injuries are attributable to – at the least – the improper prescribing practices of physicians who prescribed opioids (in many cases just unnecessarily but other times with criminal intent), the acts of persons who illegally or improperly supplied prescription opioids to third parties, and the behavior of the persons who abused the prescription opioids or transitioned to other drugs such as heroin.”

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.

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Organizations in this Story

AmerisourceBergen Cardinal Health CVS Health Mckesson Corporation Rite Aid U.S. District Court for the Northern District of Ohio Wal-Mart Stores Inc Walgreens Co.

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