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5 Jun 2018

Amanda Bronstad, National Law Review (USA)

Drugmakers, in Bid to Extinguish Opioid Suits, Say There's No 'Viable Legal Theory'

Drug companies defending opioid lawsuits have fired back in the federal court handling the sprawling litigation...The companies—manufacturers and distributors of the prescription painkillers, and retail pharmacies—outlined their defenses in motions to dismiss lawsuits brought by the cities of Cleveland and Chicago, and two Ohio counties... U.S. District Judge Dan Polster...overseeing multidistrict litigation over the opioid crisis...selected those cases for limited discovery...[P]laintiffs amended many of the complaints last month after getting information from a drug database controlled by the U.S. Drug Enforcement Agency.  That prompted motions to dismiss filed by manufacturers Johnson & Johnson’s Janssen Pharmaceuticals Inc., Purdue Pharma, Endo Health Solutions, Teva Pharmaceuticals, Allergan, Insys Therapeutics Inc., Mallinckrodt and Noramco; distributors AmerisourceBergen Corp., Cardinal Health and McKesson Corp.; and four pharmacies: Rite Aid Corp., Walgreens, Walmart Inc. and CVS.  Most of the defendants have publicly insisted they weren’t to blame for the opioid epidemic.  In motions filed on May 25, the defendants generally alleged the cities and counties lacked standing to sue in federal courts—either because they had no authority or failed to allege the appropriate injuries in order to do so.  They also argued that since the U.S. Food and Drug Administration approved opioids, federal regulations pre-empted the state law claims...Here are some additional arguments in the motions:

    Opioids come with clear risks of addiction and overdose.
    The complaints fail to allege a specific misrepresentation on which a doctor relied in writing an opioid prescription.
    Companies had a duty to the DEA, not the plaintiffs, to monitor suspicious drug orders.
    Plaintiffs failed to allege unjust enrichment because they conferred no benefit on the companies.
    Participation in a trade association did not show a civil conspiracy among the companies.