DADE CITY, Fla. (Legal Newsline) - Florida Attorney General Ashley Moody lost her bid to prevent opioid defendants from telling jurors about illegal fentanyl flooding the state from conspirators in Mexico and China - a theory the Republican AG herself has loudly promoted in calls for tighter border security.
The judge expected to oversee a trial beginning next month in Florida state court rejected Moody's motion to exclude what the AG called a "xenophobic conspiracy theory intended to inflame the passions of certain jurors."
Lawyers for the state had argued Moody’s public comments about the “fentanyl scourge coming from China and Mexico” reflected her views as a politician, not her legal theory in the case.
Walgreens attorney Jordan Golds told Pasco County Judge Kimberly Sharpe Byrd that it would be absurd to shield the jury from hearing about a major cause of opioid addiction and overdose deaths that the state’s top legal officer agrees is caused by foreign actors.
“Outside of court, the attorney general has been explicit, in her own words, that the main cause …of the extraordinary growth of both overdose deaths and opioid deaths is fentanyl,” Golds said in a March 28 hearing. “I don't know if that was the attorney general speaking as a politician or the attorney general speaking in her role as the chief law enforcement officer of the state. But either way ‐‐ and I don't know how more explicit you can get to connect this issue of fentanyl coming in from abroad to what it is that's being litigated here.”
Walgreens is now the lone defendant facing trial after a round of settlements were announced shortly after this ruling went against Moody.
Moody’s predecessor, Republican Pam Bondi, sued opioid manufacturers and distributors in 2018 and later added pharmacy operators like Walgreens. The state, like many others, accuses the industry of promoting opioid painkillers with misleading marketing to doctors and patients and failing to intercept suspicious orders that were diverted into the wrong hands or sold on the black market. The state accuses the defendants of causing a public nuisance and is seeking billions of dollars in damages it calls “abatement.”
At Monday’s hearing Lillian Smith, a private attorney working on contingency for the state, argued the defense should be barred from telling jurors “illicit fentanyl entered Florida due to some conspiracy between China and Mexico to flood U.S. markets with illicit opioids.”
Such an argument would be irrelevant to the case and “creates a significant risk of stoking prejudice in the jury,” said Smith, an associate with Kellogg Hanson Todd Figel & Frederick in Washington, D.C.
A few weeks before the state filed its motion in limine to restrict talk about Mexico and China, however, AG Moody joined 15 other state AGs to call on U.S. Secretary of State Anthony Blinken to address “China’s complete unwillingness to police the production and distribution of fentanyl precursors and Mexico’s subsequent failure to control illegal manufacturing of fentanyl using those precursors.”
In the Jan. 13 letter Moody and her fellow AGs said “everyone now understands that Chinese drug producers are shipping fentanyl precursors to Mexico, where cartels make them into fentanyl and traffic it overland into the United States.” They asked Blinken to take “immediate steps to stem the fentanyl scourge coming from China and Mexico.”
More recently, Moody wrote to Homeland Security Secretary Alejandro Mayorkas, urging tighter border controls and stating Mexico “is now the top importer of fentanyl into the U.S.”
“Those are the attorney general's statements as a politician imploring the federal government to help stop the flow of illegal opioids into Florida,” Smith argued in her Feb. 22 letter. “It does not matter with the questions this jury has to answer about the causes of the opioid epidemic in this case.”
After hearing arguments from both sides, Judge Byrd denied the state’s motion without comment.
Florida, like some other states, hired outside law firms under contracts that will grant them a share of anything the state wins or obtains through settlement. In addition to Kellogg Hansen, Florida firms Drake Martin, Curry Law Group, Harrison Rivard Duncan & Buzzett and Newsom Melton stand to earn fees from the case.
The trial is scheduled to begin April 4. Walgreens has asked to halt the trial while an appeals court decides whether it has immunity under a 2012 settlement with the state under then-AG Bondi, however. Following on a Drug Enforcement Administration probe of Walgreens’ Jupiter, Fla. wholesale operation, the state negotiated a settlement for $3,000, then the statutory maximum. Walgreens argues the agreement covered all “complaints arising from or relating to the allegations,” which included failing to operate an effective prescription order monitoring system.
Judge Byrd denied the company’s motion for summary judgment on March 11. Walgreens filed an appeal seeking a delay trial, stating it “will be a monumental waste of judicial, party, and jury time and resources” if the appeals court ultimately agrees Walgreens should be dismissed from the case. Even if the settlement only covers claims dating back to 2012, the company said, the trial would be futile since Walgreens could win a post-verdict ruling that the jury was prejudiced by hearing evidence about pre-2012 activities.