Judge Scott Nusbaum, Court of Common Pleas, Ross County, Ohio (Courtesy photo)

A judge has allowed the state of Ohio's case to go forward against several opioid manufacturers in a ruling that plaintiffs lawyers are citing in other cases brought over the epidemic.

Already, lead plaintiffs attorneys in the federal multidistrict litigation over opioids have cited the Aug. 22 decision by Ross County Court of Common Pleas Judge Scott Nusbaum. The citations have come in cases brought by one state, six counties and a hospital—all of whom a federal judge in the MDL handpicked to move forward on discovery. Those plaintiffs are opposing pending motions to dismiss by manufacturers and distributors of opioids.

The Ohio judge rejected motions filed by several manufacturers to dismiss claims such as public nuisance, fraud and racketeering.

“The plaintiff's complaint adequately identifies the defendants and their actions and representations,” Nusbaum wrote. “The complaint contains over 40 pages which explain in detail the marketing tactics utilized by defendants, their representatives, and various groups connected to defendants. Similarly, the complaint adequately sets forth the representations made, how these representations were distributed to physicians and citizens of Ohio, that the representations were false and that the defendants knew the falsity of the representations.”

The Ohio ruling is among a handful of dismissal orders in the growing opioid litigation. In June, Suffolk County Supreme Court Judge Jerry Garguilo refused to dismiss claims by several New York counties against opioid manufacturers, then ruled against the distributors last month. Superior Court Court Judge Dani Crosby in Anchorage refused to dismiss the state of Alaska's case against manufacturer Purdue Pharma last month.

“It is yet another loss for the opioid defendants that raises a serious question: Why is money being spent on defense lawyers making doomed motions rather than to help the governments left holding the bag for the devastating effects of these same companies' misconduct?” Paul Hanly, of Simmons Hanly Conroy, wrote in an email. Hanly is a co-lead counsel in the MDL over opioids.

Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine, said in a statement: “The Ohio Attorney General's Office is pleased this case is proceeding and moving forward with discovery.”

Bob Josephson, a spokesman for Purdue Pharma, one of the defendants, said: “While we are disappointed that the claims were not dismissed at this stage, it is important to note that this is not a ruling on the merits of the case. We vigorously deny the state's allegations and we look forward to the opportunity to present our substantial defenses.”

And Johnson & Johnson wrote: “Our actions in the marketing and promotion of these medicines were appropriate and responsible. The labels for our prescription opioid pain medicines provide information about their risks and benefits, and the allegations made against our company are baseless and unsubstantiated.”

Spokespeople for the other defendants—Endo Health Solutions, Teva Pharmaceuticals Industries and Allergan—did not respond or declined to comment.

The ruling could be influential in the MDL, which involves cases brought primarily by cities, counties, Native American tribes and hospitals. Judge Dan Polster of the U.S. District Court for the Northern District of Ohio, who sits in Cleveland, is overseeing all the cases.

Although Polster has focused his efforts on reaching a global settlement, he has allowed some discovery to go forward as to a limited number of cases, with a potential trial set for late next year. One of those cases involves the city of Akron and Summit County in Ohio.

Both of those plaintiffs—along with West Virginia's Cabell County, Michigan's Monroe County and Florida's Broward County, and the city of Chicago—filed an Aug. 24 notice of the Ohio ruling in support of their oppositions to dismiss their cases.

Alabama Attorney General Steve Marshall, in the only state's case in the MDL, cited the decision on Wednesday. His office and Beasley, Allen, Crow, Methvin, Portis & Miles, which filed the notice, did not respond to requests for comment.

Then, on Thursday, the West Boca Medical Center Inc., a hospital in Florida, filed a notice. The hospital's attorney, Don Barrett of Barrett Law Group in Lexington, Mississippi, did not respond to a request for comment.

The state of Ohio filed its case against the manufacturers in 2017. Hagens Berman Sobol Shapiro's Steve Berman in Seattle and Mike Moore of the Mike Moore Law Firm in Flowood, Mississippi, both veterans of the tobacco litigation, are representing the state of Ohio in the case.

In this month's ruling, Nusbaum refused to dismiss any of the claims. The notices in the MDL referenced his decision on preemption and his refusal to dismiss public nuisance claims or claims under the Ohio's Corrupt Practices Act, the state's racketeering statute.

As to preemption, which defendants insist applies because of U.S. Food and Drug Administration approved opioids, Nusbaum found that “drug labeling does not preclude fraud claims.”

He also found that the state of Ohio had alleged mail, wire and telecommunications fraud in support of Ohio's Corrupt Practices Act as part of a complaint that “sets forth the defendants' intent in committing various criminal acts.”

On the public nuisance claim, Nusbaum cited a 2002 decision by the Ohio Supreme Court in a case brought by the city of Cincinnati against several gun manufacturers. The judge said that ruling, in City of Cincinnati v. Beretta USA, which allowed the case to go forward, “adopted a broader definition of public nuisance.”

Citing that same decision, Nusbaum also held that, at this stage in the case, “it is not necessary” for the state of Ohio to identify specific physicians who relied on alleged misrepresentations made by the defendants in order to pursue fraud claims.