Steve Marshall, attorney general of Alabama. Courtesy photo.

The state of Alabama has voluntarily dismissed its lawsuit against several opioid companies after the judge questioned whether he had federal jurisdiction over the case.

Alabama Attorney General Steve Marshall filed the motion on Wednesday, citing a June 6 order from U.S. District Judge Dan Polster of the Northern District of Ohio that asked for additional briefing on whether he had federal jurisdiction to hear the case. Polster asked for the state to file its first brief by Friday.

Marshall asked that the judge grant the motion without prejudice.

“Because jurisdictional defects can be raised at any time, at any level of the proceedings, Alabama believes that it is in the courts' and the parties' best interests to dismiss Alabama's original action so that it can be refiled, rather than allow jurisdictional issues to resurface post-trial and/or on appeal, if any,” he wrote.

The decision is significant because Alabama was the only state pursuing its opioid case in the multidistrict litigation before Polster, who granted discovery in the case that attorneys general in other states could potentially use. The vast majority of the more than 1,800 lawsuits in the multidistrict litigation are cities and counties seeking to recoup the costs of medical treatment and law enforcement, but Native American tribes, hospitals and others have brought their own lawsuits.

Neither a representative for Marshall's office nor its outside counsel firm, Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, responded to requests for comment. Lead plaintiffs counsel in the multidistrict litigation wrote in an email: “The defendants challenged the jurisdiction of the federal court to hear the case, so Alabama decided to refile at the state level.”

Marshall sued opioid manufacturer Purdue Pharma in 2018. Among other things, the suit, amended to include Endo Health Solutions Inc. and McKesson Corp., sought punitive damages, civil penalties and disgorgement of Purdue's “unjust enrichment and ill-gotten gains.” Thirty-five states filed amicus briefs supporting Alabama's court documents opposing dismissal of its case last year, including Connecticut, Delaware, Florida, Georgia, New Jersey, New York, Pennsylvania, Texas and the District of Columbia.

Other attorneys general have brought their lawsuits in state courts, where many judges have refused to dismiss opioid cases, decisions that Alabama flagged in its case. Last month, a judge dismissed North Dakota's case against Purdue, and Oklahoma began the first trial in the nation with claims against Johnson & Johnson.

In his order, Polster wrote that Alabama's complaint, most of which alleges state law claims, tied federal jurisdiction to its unjust enrichment claim. But McKesson, in a motion to dismiss the case, raised the defense that “there is no such thing as a federal common law claim for unjust enrichment,” the judge wrote. Geoffrey Hobart, a Washington, D.C., partner at Covington & Burling, who filed McKesson's motion a year ago, did not respond to a request for comment.

“If it is true, the court does not have jurisdiction over the Alabama case,” Polster wrote, ordering a new round of supplemental briefs on the issue.

In an unusual move, Polster also ordered supplemental briefs on a separate matter: whether certification is appropriate for class actions brought on behalf of opioid-addicted babies across the nation.

“The court is aware that defendants do not believe class certification is appropriate in any of the NAS cases,” Polster wrote, referring to babies born with neonatal abstinence syndrome. “Moreover, the question of NAS class certification may affect ongoing settlement discussions.”

He told defendants to file a single motion to strike the class allegations by July 22, with plaintiffs due to respond by Aug. 19.

Scott Bickford, of Martzell, Bickford & Centola in New Orleans who has filed the class actions that seek a trust of more than $1 billion to help pay for medical monitoring of the children, called the judge's order an “aberrant procedural method in which to deal with our claims.”

“We didn't get notice of his order from class counsel or were even informed of the hearing by liaison counsel,” he said. As to the order, he said: “We're studying it, and trying to determine how we will respond at this time.”