Conn. judge rejects opioid claims, says allowing them would lead to 'junk justice'

By Daniel Fisher | Jan 14, 2019

HARTFORD, Conn. (Legal Newsline) - A Connecticut judge has dismissed lawsuits by four cities against the opioid industry, saying there is no logical way for the plaintiffs to calculate damages or distribute any money they might win in the litigation. 

Allowing such cases to proceed would lead to a “wildly complex and bogus system” under which the court would have to engage in “rank speculation” about which municipal costs were caused by which defendant’s wrongdoing, wrote Hartford Superior Court Judge Thomas Moukawsher in a breezy 16-page decision issued Jan. 8. 

The decision applies to lawsuits by New Haven, New Britain, Waterbury and Bridgeport but could have implications for more than 30 more such municipal lawsuits in Connecticut. Judge Moukawsher relied primarily on a 2001 decision by the Connecticut Supreme Court, Ganim v. Smith & Wesson, which upheld the dismissal of a lawsuit by the City of Bridgeport against the gun industry. 

Ganim requires Connecticut judges to consider how remote the injury is from the alleged wrongdoing, how complicated it would be to decide who gets paid damages, and whether other parties are in a better position to sue. The opioid cases fail on all three counts, Judge Moukawsher wrote, meaning the court has no jurisdiction to decide them.

Over two days of hearings in September and October, he said, “it became apparent that the plaintiffs filed these suits without first thinking of a way to sort out the causation conundrum,” the judge wrote. “Indeed the best they could do was to say in some other cases in some other place someone is said to be working on something about it.”

The judge is probably referring to U.S. District Judge Dan Aaron Polster in Ohio, who is overseeing federal multidistrict litigation against the opioid industry and has taken the directly opposite tack. Judge Polster has rejected the industry’s motions to dismiss and has openly prodded the parties to negotiate a large settlement to fund opiate addiction programs and shore up municipal finances. 

That approach would be nice, Judge Moukawsher wrote, but it isn’t appropriate in civil litigation with diffuse harms and no logical way to assign the blame. A judge or jury would have to figure out how much of Bridgeport’s extra costs were caused by a distributor’s shipment of excess pills into the city, say, versus other causes such as price increases for the anti-overdose medication Narcan, police costs unrelated to opioid abuse, and costs linked to the sale of illegal drugs or gun crime unrelated to prescription opiates. 

“This would inevitably lead to determining causation by conjecture,” the judge wrote. “It would be junk justice.”

The plaintiffs proposed no logical way to allocate money among the cities, he said, making any distribution “more like the distribution of alms from the community chest than like the judgement of a court of competent jurisdiction.”

Connecticut-based Purdue, in a written statement, commended 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.” Plaintiff attorney Paul Hanly, who represents a number cities in Connecticut and elsewhere around the country, said his clients are “disappointed by the court’s ruling, which we believe is materially incorrect.”

The defense victory may be short-lived. By dismissing the cases, Judge Moukawsher is bucking a nationwide trend toward using civil litigation to recover municipal costs attributed to alleged mass torts, including the sale of cigarettes, lead paint and climate change. While plaintiffs have suffered some notable defeats, judges increasingly seem willing to entertain such lawsuits.

The judge, who was appointed by Democratic Gov. Dannel Malloy, also has been overturned before on a highly publicized decision. Last year, the Connecticut Supreme Court reversed the judge’s ruling that the state’s public school system was unconstitutional because of disparities in academic achievement. 

The judge ordered sweeping changes in school funding despite the fact plaintiffs couldn’t show significant differences in per-pupil expenditures because of state revenue sharing with the cities. 

The state high court rebuked Judge Moukawsher in that case, saying “it is not the function of the courts … to create educational policy or to attempt by judicial fiat to eliminate all of the societal deficiencies that continue to frustrate the state’s educational efforts.”

Perhaps mindful of his earlier defeat. Judge Moukawsher wrote in the opiate decision that state agencies can still go after the opiate industry by using broadly written consumer protection statutes and other laws, and individual addicts and their families can sue the manufacturers and distributors for falsely claiming prescription opiates carried a small risk of addiction.

Indeed, Connecticut launched its own opiate lawsuit in December. 

“The state might share some of the money with the cities or at least shore itself up and improve the chances of helping cities hurt by this epidemic,” the judge wrote. 

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