LOS ANGELES (Legal Newsline) - A California appeals court rejected an attempt by Johnson & Johnson and other opioid makers to obtain millions of patient records they said they needed to defend against lawsuits by Los Angeles and other counties.
The Fourth Appellate District reversed a district court order requiring the counties to turn over information about Medicaid patients who were prescribed opioids or sought treatment for substance abuse. In a June 15 decision that largely follows its January ruling rejecting a similar discovery request, the appeals court said the disclosure of patient data, even if it was “de-identified” by replacing patient names with numbers, would violate the state constitutional right to privacy.
“The number of patient records implicated by the court’s order is staggering,” the appeals court said, including more than 1.7 million in Los Angeles County alone. “The Johnson & Johnson defendants have failed to identify countervailing interests supporting the discovery order that outweigh the privacy interests at stake.”
The decision contrasts with the victory opioid defendants won in federal court in Ohio, where the judge in charge of multidistrict litigation ordered the state to turn over prescription data large pharmacy chains said they needed to identify “pill mill” doctors and corrupt local pharmacies that they say were the real cause of the “public nuisance” government plaintiffs accuse them of causing.
Los Angeles County, joined by Santa Clara and Orange Counties and the City of Oakland, sued the opioid makers in state court on claims of false advertising, unfair competition and public nuisance. The government plaintiffs are represented by several private law firms working on contingency-fee contracts, including Motley Rice, Hagens Berman and Robinson Calcagnie.
In December 2018 the defendants served subpoenas on Los Angeles and Alameda County health agencies seeking claims data for opioid prescriptions, healthcare services and substance-abuse treatment. They wanted any documents relating to “actual or potential harm” to patients because of their products or marketing activities, and any Medicaid claims for opioid prescriptions.
After negotiations failed, the defendants filed motions to compel discovery and turn over the records to an outside vendor to “deidentify” individual patient records, replacing names with unique numbers.
The counties opposed the motion on privacy grounds, but in July 2020 the district court approved the discovery, saying there were adequate precautions to protect the identities of individual patients. The counties appealed the order in August, saying that it endangered the state constitution’s guarantee of privacy.
The Fourth District granted the unusual interlocutory appeal on privacy grounds and overruled the district court’s order. It relied largely on the reasoning in its January decision, Board of Registered Nursing v. Superior Court, in which the Fourth District rejected a similar records request as overbroad and likely to violate state constitutional privacy rights.
“Medical records pertaining to substance abuse treatment, such as those at issue in this case, are an example of such `highly personal details’ that are entitled to even greater privacy protections under state and federal law,” the appeals court wrote in the latest case.
The fact the identities of individual patients will be protected from public disclosure doesn’t matter, the appeals court said. The order would still impact their privacy rights since the counties would have to produce highly sensitive documents containing their names “to an outside entity without the notice or consent of the patients.”
The court rejected comparison to another of its decisions allowing plaintiffs to obtain anonymized data for more than 100 patients treated by the surgeon they were suing. It agreed with the counties that the mere fact patient data was released to a third-party vendor might discourage patients from seeking treatment in the future.
Even if the data were “de-identified,” the court said, it is increasingly easy to re-identify individuals by cross-matching information contained in other databases. (“Whether an individual may have a privacy interest in information pertaining to that individual even where that data is not linked to the individual is an important legal question” thus far unanswered, the judges mused in a footnote.)
The defendants, meanwhile, failed to provide any detailed explanation of how the data would help them defeat specific claims made by the plaintiff counties. The court dismissed as “vague arguments” the defendants’ claim the data “goes to the heart of the Peoples’ causation theories” and might be necessary if it comes time to apportion damages. The plaintiffs haven’t given any sign they will use the records in their case, the court added.