MORGANTOWN — Opioid makers, distributors and retailers accused of causing and aggravating the nationwide opioid crisis suffered a series of blows to their defense Tuesday and Wednesday, as an Ohio federal judge issued 10 orders swatting down their requests for summary judgment in their favor.
We look at some highlights of the 10 orders. But first, some background.
Summary judgement requires a decision based on undisputed facts. But in each ruling, Judge Dan Aaron Polster, in the U.S. District Court for the Northern District of Ohio, said the defendants had failed to make their points and the plaintiffs presented sufficient evidence for him to conclude a jury would need to weigh the facts and make a decision.
Local governments across the country – estimates range from 1,600 to 2,000 – have filed suit to claim damages from the crisis. The town is Granville is among the three dozen West Virginia towns, cities and counties that have filed suit.
Carin’s Cleveland Business reported that the rulings clears the way for Johnson & Johnson, Cardinal Health, Walgreens and other companies to face a federal jury on Oct. 21.
MetroNews’ Jeff Jenkins reported on two of the orders on Tuesday and noted that the first case involving West Virginia plaintiffs, Huntington and the Cabell County Commission, is the second trial scheduled. Evidence exchange is scheduled for early next year.
Now some highlights.
Defendants wanted judgment on plaintiffs’ claims that their fraudulent marketing campaigns led to increased opioid prescriptions. Polster said the plaintiffs have presented sufficient evidence to support claims from the first batch of counties, called Track One.
“This evidence would allow a reasonable jury to find that each manufacturer engaged in misleading marketing activities,” Polster said. “A jury could reasonably conclude the manufacturers [collectively] and each of them, failed to maintain effective controls against diversion.” It’s up to a jury.
Defendants also sought judgment against claims they engaged in conspiracy to increase the market through false marketing. In denying the motion, Polster cited, among other examples, a 2013 exclusive distribution agreement between Walgreens and distributor ABDC that provided Walgreens seats on the ABDC board and shares of its stock. ABDC gained 8,000 new Walgreens outlets but added only three people to its Diversion Control Program.
Teva and its subsidiary Actavis Generics sought, in particular, judgement on claims of fraudulent marketing and failure to maintain adequate diversion controls. In ruling against them, Polster cites the example of a Teva-hired physician for a “Pain Matters” program who said the growth in opioid prescriptions stemmed in part from doctors’ willingness to treat pain with opioids. The doctor cited a study saying on 3.27% of chronic pain patients had a likelihood of abuse or addiction. But plaintiffs’ expert put the abuse rate at 21-29%, addiction risk at 8-12%, soaring higher with long-term use. The differences show a clear conflict of facts.
Polster also denied defendants’ motion for summary judgment based on their belief the statues of limitations had passed for the various allegations. Polster spends 25 pages in the legal weeds on the various points, but summarizes it: Some claims have no time limitations; the actual date to start counting down for the others is in question and up to a jury.
Walgreens also filed a solo motion for judgment on allegations it failed to maintain effective diversion controls. Polster cites plaintiffs’ evidence that Walgreens didn’t operate an adequate suspicious order reporting system and ignored orders and patterns that presented obvious signs of diversion. “Walgreens lax approach to monitoring diversion at the Jupiter (Fla.) facility was standard operating procedure nationwide.
So, he said, a jury could reasonably conclude that Walgreens did fail to maintain adequate diversion controls and this failure contributed to the harm plaintiffs suffered.
MetroNews’ Jenkins quoted Charleston attorney Rusty Webb, who is representing Granville and the other West Virginia municipalities and counties, who believes the rulings may lead the defendants to the negotiation table. ““Those are significant rulings in this case which will bring about, I believe, an acceleration of settlement talks.”
Tweet David Beard @dbeardtdp Email dbeard@dominionpost.com
