Opioid Litigation Roundup: An Overview Of Major Cases - Law360

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1 Page 1 of 5 Portfolio Media. Inc. 111 West 19th Street, 5th floor New York, NY Phone: Fax: customerservice@law360.com Opioid Litigation Roundup: An Overview Of Major Cases By Andrew Westney Law360, New York (October 20, 2017, 9:25 PM EDT) -- State attorneys general, a Native American tribe and individual consumers are among the chorus of plaintiffs who've brought lawsuits against drugmakers, pharmacies and distributors allegedly responsible for epidemic levels of opioid abuse. Here, Law360 gives an overview of major pending opioid cases and how far they've progressed. States Several states hard hit by opioid abuse have sued leading drugmakers over their promotion of opioids, while a host of state AGs from Illinois, Pennsylvania, Colorado, Texas, Tennessee, Massachusetts and elsewhere are participating in a probe launched in June into how drugmakers might have contributed to the country's opioid epidemic. In Missouri, Attorney General Josh Hawley filed a suit June 21 in state court claiming that the major opioid makers Purdue Pharma LP, Endo Health Solutions Inc. and Johnson & Johnson unit Janssen Pharmaceuticals Inc. "carried out a complex, multiyear campaign" to "deliberately misrepresent the addictive risk of opioids." Purdue manufactures opioids including OxyContin and Dilaudid, Endo makes Percocet and Percodan, and Janssen produces Duragesic and Nucynta. In late August, Hawley demanded that seven drugmakers, including Pfizer Inc., Teva Pharmaceuticals USA Inc., Mylan Inc. and Allergan PLC, hand over documents about their opioid marketing as part of an investigation into whether they pushed the opioid crisis along despite knowing the addiction risks. Teva makes Actiq and Fentora, while Allergan produces Kadian, Norco and generic opioids. The case is State of Missouri v. Purdue Pharma LP et al., case number 1722-CC10626, in the Circuit Court of the City of St. Louis. In Ohio, Attorney General Mike DeWine hit Janssen, Allergan, Purdue, Endo Health Solutions and Teva unit Cephalon Inc. with a suit in state court on May 31, alleging the companies said the companies violated the Ohio Consumer Sales Practices Act and "created a public nuisance by disseminating false and misleading statements about the risks and benefits of opioids" through advertising in medical journals and through sales representatives. In September, the companies urged the court to toss the suit, with Purdue saying that the state hadn't shown enough of a link between the company s advertising and the state s

2 Page 2 of 5 opioid problems. The case is State of Ohio v. Purdue Pharma et al., case number 17CI000261, in Ross County Court of Common Pleas. New Hampshire claimed in a suit filed in state court on Aug. 8 that Purdue continued to promote its opioid drugs as safe and not addictive, even after pleading guilty to related criminal charges in 2007, including saying signs of addiction are instead "undertreated pain" that must be treated with opioids. Purdue sought to remove the case to federal court on Sept. 15, saying the case is similar to a class action, but New Hampshire is now seeking to remand the case to state court, claiming the federal court has no basis for jurisdiction under the Class Action Fairness Act or any other law. The case is State of New Hampshire v. Purdue Pharma LP et al., case number 1:17-cv , in the U.S. District Court for the District of New Hampshire. Oklahoma Attorney General Mike Hunter went after Purdue, Allergan, Actavis Inc., Watson Laboratories Inc., Cephalon and Janssen with a state court complaint filed June 30, alleging the drugmakers "deceived and manipulated Oklahomans into believing opioids were safe for use over an extended period." The companies asked the court to nix the suit on Sept. 22, arguing that "at its core, the petition seeks to challenge the [U.S. Food and Drug Administration's] decision balancing the benefits and risks of certain opioid medications because the Oklahoma attorney general disagrees with those decisions." The case is State of Oklahoma v. Purdue Pharma LP et al., case number CJ , in the District Court in and for Cleveland County. Cities and Counties Chicago launched one of the earliest suits in the ongoing opioid battle, filing a 2014 compliant in Illinois federal court claiming the city paid for thousands of medically unnecessary prescriptions for city employees because Purdue, Cephalon, Janssen, Endo, Allergan and Depomed Inc. allegedly pushed prescriptions despite the known dangers of addiction. The case is in discovery, and the latest move in the case is Chicago s bid to compel Janssen to allow the city to seek documents from 10 employees responsible for its opioid marketing as custodians of electronically stored information. The case is City of Chicago v. Purdue Pharma LP et al., case number 1:14-cv-04361, in the U.S. District Court for the Northern District of Illinois. In March, two West Virginia counties filed a suit taking on a different part of the opioid supply chain, targeting wholesale drug distributors and pharmacies rather than drugmakers with suits in federal court. The complaints alleged that the companies fueled the opioid addiction epidemic by pumping millions of drugs into the areas, which both have drug overdose death rates several times higher than the national average. Kanawha and Cabell counties said in separate suits filed on March 9 that the companies which include Walgreen Co., CVS Health and McKesson Corp. sold 66 million and 40 million doses of painkillers, respectively, between 2007 and Since those complaints were filed, the state of West Virginia, eight more West Virginia

3 Page 3 of 5 counties and six cities and towns in the state have filed related suits. The cases are Cabell County Commission v. AmerisourceBergen Corp. et al., case number 3:17-cv-01665, Kanawha County Commission v. Rite Aid Inc. et al., case number 2:17-cv , Honaker v. West Virginia Board of Pharmacy et al., case number 1:17-cv-03364, Sparks v. West Virginia Board of Pharmacy et al., case number 2:17-cv-03372, State of West Virginia et al. v. McKesson Corp. et al., case number 2:17-cv-03555, Barker v. West Virginia Board of Pharmacy et al., case number 2:17-cv-03715, The County Commission of Mercer County v. West Virginia Board of Pharmacy et al., case number 1:17-cv-03716, Carlton et al. v. West Virginia Board of Pharmacy et al., case number 2:17-cv-03532, The County Commission of McDowell County v. McKesson Corp. et al., case number 1:17-cv , The City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17- cv-01362, Fayette County Commission v. Cardinal Health Inc. et al., case number 2:17-cv , Wayne County Commission v. Rite Aid of Maryland Inc. et al., case number 3:17- cv-01962, Boone County Commission v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-02028, Fayette County Commission v. Cardinal Health Inc. et al., case number 2:17-cv-02296, Wyoming County Commission v. AmerisourceBergen Drug Corp. et al., case number 5:17-cv-02311, The County Commission of Lincoln County v. West Virginia Board of Pharmacy et al., case number 2:17-cv-03366, and Livinggood v. West Virginia Board of Pharmacy et al., case number 2:17-cv-03369, all in the U.S. District Court for the Southern District of West Virginia. The city of Birmingham, Alabama, and several Ohio counties and cities then hit AmerisourceBergen Corp., Cardinal Health Inc. and McKesson with suits in late July through late August in federal courts in their respective states. Each suit, brought by the same team of attorneys, claimed that the distributors failed to report suspicious orders and alleging violations of the Corrupt Practices Act violations and Racketeer Influenced and Corrupt Organizations Act. The cases are City of Birmingham v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-01360, in the U.S. District Court for the Northern District of Alabama, and Clermont County Board of County Commissioners v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-00662, Belmont County Board of County Commissioners v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-00663, Brown County Board of County Commissioners v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv , Vinton County Board of County Commissioners v. AmerisourceBergen Corp. et al., case number 2:17-cv-00665, Jackson County Board of County Commissioners v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-00680, Scioto County Board of County Commissioners v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv , Ross County Board of County Commissioners v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-00704, City Of Cincinnati v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-00713, and City of Portsmouth v. AmerisourceBergen Drug Corp. et al., case number 2:17-cv-00723, all in the U.S. District Court for the Southern District of Ohio. Now, the Alabama and Ohio cases and many others are among 66 suits filed by cities and counties in 11 different federal courts that could be consolidated in a multidistrict litigation, after the West Virginia firm of Hill Peterson Carper Bee & Deitzler PLLC asked for the cases to be transferred on Sept. 25. However, while the firm argued that the suits share common questions about the manufacture, distribution and sales of opioids by the defendants and chiefly target drug distributors, the MDL bid is complicated by the fact that some suits also name drugmakers and companies at other levels in the opioid supply chain, and some of the plaintiffs are represented by other firms.

4 Page 4 of 5 Parties opposing or supporting the MDL transfer had until Friday to file briefs with the Judicial Panel on Multidistrict Litigation, setting out "what steps they have taken to pursue alternatives to centralization," according to a Sept. 29 order from the panel. A status conference in the case is set for Tuesday. The MDL is In re: National Prescription Opiate Litigation, case number 2804, before the U.S. Judicial Panel on Multidistrict Litigation. Cherokee Nation The Cherokee Nation, a federally recognized tribe in Oklahoma, is seeking to keep its suit against CVS Health, Walgreens Boots Alliance Inc., McKesson and other pharmacy and drug distributor giants in tribal court, after the companies removed the case to federal court and sought to block the tribal court suit. The Nation's tribal court complaint, filed in April, contends that the companies have allowed "massive amounts" of opioid pills to be diverted to the black market in a manner that has fueled an epidemic of abuse in the Cherokee Nation. The companies responded in June by launching their Oklahoma federal court lawsuit against Cherokee Nation Attorney General Todd Hembree and two Cherokee Nation District Court judges, arguing that the federal court should hear the case because the alleged conduct did not occur in Indian country and the tribal court therefore lacked jurisdiction over the actions by the non-indian companies. The companies have also moved to dismiss the tribal court case, but the Nation and the companies have agreed to a stay while the federal court resolves the companies request for an injunction. The tribal court case is The Cherokee Nation v. McKesson Corp. et al., case number CV , in the District Court of the Cherokee Nation. The federal court case is McKesson Corp. et al. v. Hembree et al., case number 4:17-cv , in the U.S. District Court for the Northern District of Oklahoma. Class Action While state, local and tribal governments are driving most of the opioid-related litigation, a proposed class action was filed in Arkansas federal court in June, claiming drug companies including Endo, Johnson & Johnson and Purdue pushed doctors to prescribe opioids while "trivializing" or not accurately describing the risk of addiction. Michael Ray Lewis, an Arkansas resident who became addicted to opioids after being prescribed painkillers starting in 2005, filed suit June 29 seeking to represent two statewide classes: one seeking damages for opioid users who were prescribed one of the companies' opioids and received medical attention for an overdose or addiction, and a medical monitoring class of every person who was prescribed a defendant's opioid medication for any reason during a five-year period. The companies urged the court to toss the suit Sept. 29, arguing that their marketing of FDA-approved drugs is regulated by that agency and therefore falls under the "safe harbor" provision of the Arkansas Deceptive Trade Practices Act. The proposed classes are set to respond to the companies' dismissal bid by Oct. 27. The case is Lewis v. Purdue Pharma LP et al., case number 5:17-cv-05118, in the U.S.

5 Page 5 of 5 District Court for the Western District of Arkansas. --Additional reporting by Emily Field. Editing by Katherine Rautenberg. All Content , Portfolio Media, Inc.