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Attorneys general in 34 states and Washington, D.C., filed amicus briefs in the multidistrict litigation over the opioid crisis, insisting that a state has a “unique role” in protecting its residents from public harm.

The two briefs, filed Aug. 10, support the case by Alabama, the only attorney general action in the multidistrict litigation over opioids pending in the Northern District of Ohio.

In June, three manufacturers and one distributor filed motions to dismiss the Alabama case, citing the state's failure to prove that their actions directly caused the opioid crisis. They also said the complaint lacked specifics to back up deceptive trade practices and public nuisance claims.

The amicus briefs said none of that mattered because a state has a “unique role” in the opioid crisis.

“State attorneys general have long been both protectors of the health and well-being of their citizens and also the primary enforcers of state consumer protection laws,” according to one brief filed by Washington, D.C., and 31 states, including Connecticut, Delaware, Florida, Georgia, New Jersey, Pennsylvania and Texas. “Moreover, a ruling in this action that fails to account for the unique authority of state attorneys general to pursue their claims would be inconsistent with policy and law.”

U.S. District Judge Dan Polster. Courtesy photo

The Alabama lawsuit is one of a handful of cases in which U.S. District Judge Dan Polster has allowed motions and discovery to proceed.

Polster initially focused solely on settlement talks but, in May, allowed limited discovery to go forward. He also previously insisted that he wanted to “do something meaningful to abate this crisis” this year, and set a firm date of March 18, 2019, for trial. On Monday, he delayed that trial date to Sept. 3, 2019, after lawyers told him at a hearing earlier this month that they needed more time for discovery.

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Polster also issued a notice on Monday that one of the special masters, Duke Law School professor Francis McGovern, had hired William Rubenstein, a professor at Harvard Law School and expert on class actions, as a consultant in the settlement discussions, which are ongoing.

Manufacturers and distributors have filed several motions to dismiss. In a June 29 motion to dismiss claims in the Alabama case, Purdue Pharma, Endo Health Solutions and Rhodes Pharmaceuticals argued that the U.S. Food and Drug Administration approved opioids and, as such, federal pre-emption wiped out the state's claims.

“The state of Alabama brings this sweeping lawsuit seeking to hold manufacturers of certain lawful, FDA-approved opioid medications liable for the entire spectrum of public costs arising from the abuse and illegal trafficking of opioids throughout the state,” wrote attorneys for the manufacturers.

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Those attorneys—Mark Cheffo of Dechert for Purdue, Jonathan Stern of Arnold & Porter Kaye Scholer for Endo and Steven Napolitano of Skarzynski Black for Rhodes—did not respond to a request for comment.

The complaint also failed to consider the roles that doctors, patients and criminals had in contributing to the opioid crisis and that manufacturers cannot be liable for the “derivative injury” to states that alleged no specific misrepresentation or other conduct that caused the crisis, the motion says.

“The state describes broad categories of alleged misstatements, but it does not identify a single Alabama prescriber who received and was misled by them when prescribing an opioid medication for a patient,” the manufacturers wrote.

Alabama, in an Aug. 3 response to the dismissal motions, called the federal pre-emption argument a “red herring” and insisted that the state was seeking compensation for its own injuries—which went beyond regular public services—not the “derivative” injuries of its residents.

Rhon Jones of Beasley Allen. Courtesy photo

“Citizens do not hire additional law enforcement agents, create the infrastructure for treatment programs, or place naloxone in the hands of first responders; the states does,” wrote Rhon Jones, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles, which represents Alabama. “In other words, the state stands in its own shoes here, not in the shoes of others.”

The focus of the amicus briefs was on the doctrine of parens patriae, which gives states the authority to protect their residents.

“While state attorneys general protect the public interest in a wide variety of ways, their ability to proceed on behalf of the state in its parens patriae capacity and their ability to enforce consumer protection laws under statutes prohibiting unfair and deceptive acts and practices are critically important,” according to the brief filed by 31 states. “Civil penalties are not damages sought to compensate the states; they are intended to punish those who inflict harm on consumers.”

In a separate amicus brief, many of the same states and Washington, D.C., refuted arguments by McKesson, in its own June 29 motion to dismiss, that the federal Controlled Substances Act, not state law, required opioid distributors to report suspicious orders to the Drug Enforcement Administration. The amicus brief cited various state laws that achieve the same goal as the federal act.

“State laws themselves prohibit opioid distributors from facilitating diversion and from turning a blind eye to suspicious orders,” that brief says. “State attorneys general, including the attorney general of Alabama, are empowered to enforce violations of those laws.”

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