California judge rejects public nuisance claim in opioid lawsuit
The ruling gives drug companies their first major victory in the litigation brought by cities and counties across the country.
Four years after a California appeals court upheld her landmark victory against the lead paint industry, Motley Rice’s Fidelma Fitzpatrick failed to persuade a California judge to hold manufacturers of opioid pharmaceuticals liable for creating a public nuisance.
In a tentative decision Monday, Orange County Superior Court Judge Peter Wilson found that the plaintiffs, which are three large California counties and the city of Oakland, failed to differentiate between legitimate uses of opioids, which are prescription painkillers, and the illegal activities that led to addictions and overdoses. Wilson noted the Food and Drug Administration and the California Legislature were aware of the potential addictive nature of opioids when approving them for use.
Related: Opioid manufacturers: A public nuisance/?
Those were not the same facts as in the litigation that’s considered a hallmark win in public nuisance law, a lawsuit against companies that promoted lead paint as safe despite knowing of the health risks.
“The FDA approves the use of opioids in appropriate circumstances, and the California Legislature approves and promotes the use of opioids in appropriate circumstances,” Wilson wrote. “The court must accordingly draw a distinction between conduct resulting in the anticipated, approved use, and conduct resulting in improper use. The evidence does not permit the court here to draw (and measure) that distinction.”
That doesn’t mean the plaintiffs couldn’t prove a public nuisance case with the right evidence, he added.
“Nothing stated herein is intended to suggest that false and misleading marketing and promotion that results in medically inappropriate prescriptions being written may not constitute an actionable public nuisance,” he wrote. “But that is not the evidence before this court.”
The ruling gives drug companies their first major victory in the litigation brought by cities and counties across the country over the opioid crisis.
“The court held a thorough, nearly five-month-long trial and carefully considered all of the evidence presented by the plaintiff in support of their claims against these manufacturing defendants before rendering its findings in a 42-page ruling in favor of defendants on all claims,” wrote Collie James, a partner at Morgan, Lewis & Bockius in Costa Mesa, California, in an email. He represented defendant Teva, along with Pittsburgh partner Wendy West Feinstein. “This comprehensive and well-reasoned decision underscores the lawfulness of Teva and its affiliates’ conduct in the context of this complex public health issue.”
Johnson & Johnson’s Janssen Pharmaceuticals, which is appealing a $572 million verdict (later reduced to $465 million) in a 2019 bench trial against the state of Oklahoma, in the first opioid trial in the nation, said in an emailed statement: ”Today’s well-reasoned tentative decision reflects the facts of the case: Janssen’s actions relating to the marketing and promotion of its important prescription pain medications were appropriate and responsible, and did not cause any public nuisance.”
Janssen’s trial team at O’Melveny & Myers included Mike Yoder and Amy Laurendeau, both partners in Newport Beach, California; Washington, D.C., partner Steve Brody; and Los Angeles partner Amy Lucas. Also involved were Los Angeles partners Charlie Lifland and Jonathan Schneller, and New York partner Ross Galin.
Allergan’s attorney, Donna Welch, at Kirkland & Ellis in Chicago, did not respond to a request for comment.
“The court’s thorough and thoughtful opinion reflects the evidence as it came in over months of testimony,” wrote John Hueston, of Hueston Hennigan in Newport Beach, California, who with partner Moez Kaba was trial counsel for Endo. “Endo did not make false or misleading statements, and Endo’s lawful conduct did not cause the widespread public nuisance at issue in plaintiffs’ complaint.”
In addition to his public nuisance finding, Wilson concluded 86 documents cited by plaintiffs did not contain false and misleading statements.
“A recurring issue with almost all the documents identified by plaintiffs as containing false or misleading messages is the extent to which the court is being asked to infer what parts of the documents were presented to health care professionals, and in what manner,” he wrote.
Fitzpatrick, a partner in Providence, Rhode Island, who represented Oakland and the counties of Los Angeles, Santa Clara and Orange, did not respond to a request for comment.
Another Motley Rice partner, co-founder Joe Rice, is on the plaintiffs’ executive committee of the opioid multidistrict litigation in Cleveland. Rice and two other members of that committee, Jayne Conroy of Simmons Hanly Conroy and Paul Farrell of Farrell and Fuller, wrote in an emailed statement that they planned to appeal Wilson’s ruling, which is expected to be final.
“Our work continues. This ruling is related to one state case and does not impact the ongoing nationwide litigation, including the ongoing jury trial in New York State court, the Ohio jury trial in federal court, and the outcome in the West Virginia federal bench trial,” they wrote. “It must also be noted that some defendants have blatantly violated discovery rules and deadlines in these trials as they continue to produce damaging documents and evidence that further exposes their culpability.”
Some of the same companies are in a pending jury trial against the state of New York and two counties. Johnson & Johnson reached a $263 million settlement before that trial, which began June 29. On Sept. 9, amid potential discovery sanctions, Endo reached a $50 million settlement of that case.
Another jury in Cleveland is hearing an opioid trial against several pharmacies, including CVS and Walgreens, which began Oct. 4.
A federal judge in West Virginia also is due to issue his ruling in a bench trial that began May 3 against the three largest distributors of opioid pharmaceuticals. On July 21, those three distributors—McKesson Corp., AmerisourceBergen Drug Corp. and Cardinal Health Inc.—reached a $26 billion global opioid settlement with other cities and counties across the nation, along with Johnson & Johnson.
Brought in 2014, the California case went to trial April 19. The bench trial focused on a first phase focused on liability in a case in which plaintiffs were seeking $50 billion in abatement costs. It was held via Zoom due to the COVID-19 pandemic.
During closing arguments last month, Wilson grappled with the plaintiffs’ lack of evidence, noting that graphs depicting a rise in opioid prescriptions didn’t necessarily equate to inappropriate uses of the drugs.
“Without evidence of medically inappropriate prescriptions, how do I conclude this is an actionable public nuisance?” he asked Fitzpatrick.
He continued that questioning in his tentative ruling.
“Plaintiffs made no effort to distinguish between medically appropriate and medically inappropriate prescriptions,” he wrote. “There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need.”
Wilson also differentiated the opioid case from the lead paint litigation.
In 2014, as part of a public nuisance trial in which Fitzpatrick was co-counsel for 10 cities and counties in California, Santa Clara Superior Court Judge James Kleinberg ordered three lead paint companies to pay $1.15 billion in abatement costs. The Sixth District Court of Appeal, in 2017, slashed the amount by limiting the ruling to homes built prior to 1951, not 1981, but upheld the public nuisance finding.
The lead paint decision outlined “critical aspects of the law on public nuisance,” Wilson wrote. One of the criterion is that plaintiffs must prove an “unreasonable” interference on the part of the defendants, which they didn’t do in the opioid case.
“Plaintiffs rely extensively on ConAgra,” he wrote, referring to People v. ConAgra Grocery Products, the 2017 appellate decision. “But ConAgra dealt with a product, lead paint, that had no appropriate indoor use and therefore there was no reason for the court there to distinguish between marketing and promotion resulting in proper versus improper uses.”