PROVIDENCE, R.I. (Legal Newsline) - Rhode Island can proceed with its lawsuit against opioid manufacturers Teva and Actavis after a judge rejected their motions to dismiss for lack of evidence they broke the law or made any illegal shipments of drugs into the state.
Following closely on the logic of a previous Rhode Island judge’s decision as well as rulings by U.S. District Judge Dan Aaron Polster, who is overseeing federal multidistrict litigation against the opioid industry, Superior Court Justice Richard Licht in a Feb. 18 decision said the state had presented enough evidence for a jury to decide whether Teva and Actavis created a public nuisance by selling too many opioids.
Justice Licht, a Democrat who served as the state's lieutenant governor in the 1980s, acknowledged Rhode Island “cannot identify a single shipment by any defendants into Rhode Island that was purportedly `suspicious.'" But “since the Court at this stage can neither weigh evidence nor make credibility determinations, it cannot ignore the material facts currently in dispute over whether Teva USA failed to maintain effective controls against diversion.”
Teva and Actavis argued the Rhode Island Supreme Court stated definitively in a 2008 decision dismissing litigation against lead paint manufacturers that public nuisance law can’t be used against the sellers of products. But in a 2019 decision, Superior Court Justice Alice Gibney carved out an exception for opioids, saying “freedom from an overabundance of prescription opioids is a public right.”
Licht saluted Gibney’s “heavy mental lifting” as initial gatekeeper for the state’s opioid claims.
Teva argued it didn’t promote any opioids until 2011, when it acquired Cephalon. Even so, the court ruled, it is up to a jury to decide whether the subsequent marketing was misleading or fraudulent.
Actavis argued it was solely a generic manufacturer and therefore was limited to using marketing materials that had already been approved by the Food and Drug Administration for brand-name manufacturers.
Rhode Island’s expert, Dr. Andrew Kolodny, pointed to a “product availability announcement” featuring a picture of a runner in silhouette that he said was an advertisement, however.
“If this poorly illustrated graphic constituted the State’s sole evidence of Actavis Entities’ opioid marketing, then the state’s characterization of the advertisement would likely not sustain their burden of proving,” Licht wrote. “However, that is not the situation.”
Noting it wasn’t its job at this stage to determine whether the state’s evidence “crosses the threshold from puffery to falsity,” the court said it must leave that to a jury.
The judge also refused to dismiss the state’s case for failing to identify any suspicious orders that might have caused the opioid crisis. Defense lawyers “are free to grill the state’s experts as to their inability and/or unwillingness to identify a single `suspicious order’ that was shipped to Rhode Island,” the judge wrote. “Indeed, in drafting these dispositive motions, counsel for manufacturers appear to have listed every possible permutation of what the state’s experts have not proven.”
Rhode island is represented by Motley Rice in its opioid litigation. Jury selection in the trial is expected to begin later this month.