Litigation Lessons

AAC LITIGATION LESSONS Opioid litigation update

In my last article, I described the unique approach of the governments of Arkansas, including counties, cities, and the state, in the united lawsuit that has been filed against opioid manufacturers, distributors, and criminally-convicted pharmacies and healthcare professionals, in the hope of obtaining a comprehensive remedy to the Arkansas Opioid Epidemic. This quarter, I will provide an update about what has happened and is happening since the complaint was filed in March, and what we expect as we move forward with this unprecedented case.

First, we are pleased to report that the lawsuit remains on file with the Crittenden County Circuit Court. The defendants and their (over 100) attorneys have not “removed” the case to federal court, and we do not believe they have a good-faith basis to do so. With each passing day, we come closer to realizing the goal of a jury trial in Arkansas, with an Arkansas judge and Arkansas jurors.

Second, as we have learned more about some of the defendants through their filings and through communications with counsel, we have “nonsuited” (dismissed) a few defendants who have shown that they did not and do not manufacture or sell or market Schedule II opioids in Arkansas. We expect that as the case moves forward, as we access the defendants’ information and other data about opioids in Arkansas, we will continue to learn more about the individuals and entities responsible for the Arkansas Opioid Epidemic. The makeup of the defendants may change with potential addition and subtraction of defendants based on that information.

Third, the original presiding judge — Crittenden County Circuit Judge Richard Lusby — recused on Aug. 1. The case has been reassigned to Crittenden County Circuit Judge Pam Honeycutt.

Fourth, at the end of June, most of the defendant opioid manufacturers and distributors filed motions and legal memorandums totaling nearly 2,000 pages in which they asked the court to dismiss the government’s lawsuit against them. This was expected, and it was also unsurprising to see so many motions and briefs filed at the same time. Together, the filings by the defendants covered topics and arguments about personal jurisdiction, fact-pleading standards, venue, preemption, statutes of limitations, causation and injury, several common-law doctrines, standing, punitive damages, and the merits of the claims brought by the counties, cities, and state under Arkansas law. Did I mention that the defendants filed nearly 2,000 pages of paper?

On Aug. 30, we filed a unified (“omnibus”) response to all the defendants’ motions, on behalf of all the government plaintiffs. We responded to every argument, and we defended the validity of all the claims asserted in the complaint against the drug companies allegedly responsible for the Arkansas Opioid Epidemic — and we did so in less than 100 pages. The position we advocate is that under the facts alleged in the complaint, the plaintiff counties, cities, and state should be permitted to pursue all claims asserted against the defendants: negligence, common-law public nuisance, claims under the Arkansas Civil Action by Crime Victims statute, including the Arkansas Uniform Narcotic Drug Act and the Arkansas Controlled Substances Act, and claims under the Arkansas Drug Dealer Liability Act.

On the same day that we filed the omnibus response (Aug. 30), we sent a detailed letter to the federal Drug Enforcement Administration (DEA) in which we requested access to information from the DEA’s “ARCOS” database, which tracks opioid sales nationwide throughout the supply chain, from manufacturer to final sale. This evidence could be critical to the governments’ claims against the drug companies involved in the supply chain. We have properly offered to work with the DEA to craft a protective order governing use of the ARCOS data for this litigation and law enforcement, while otherwise maintaining the confidentiality of the ARCOS data.

Moving forward, we expect the defendants to file a reply (or a barrage of individual replies or both) by their deadline in early October. After that, the defendants’ motions will be ripe for a ruling by the court. We expect the court to schedule a hearing for argument on the motions sometime after the completion of briefing. Meanwhile, we intend to pursue the ARCOS data from the DEA and discovery from the defendants and begin working to craft remedies for the Arkansas Opioid Epidemic. We intend to prosecute this case, and there is much work to be done. We see no reason to pause for resolution of defense motions that we believe are meritless and should be summarily denied.

Aug. 31, 2018 — the day after we filed the omnibus brief — was International Opioid Awareness Day. A commemorative event was organized by State Drug Director Kirk Lane at the State Capitol that from 6:30 p.m. to 8 p.m. that Friday. Just before 6:30 p.m. there was a brief rain shower, and at precisely 6:30 p.m., a double rainbow appeared in the downtown landscape, blanketing the view from the Capitol steps. Director Lane, KTHV-TV Reporter Laura Monteverde, Trevor Villines, and others, including multiple addicts in recovery, gave compelling speeches about overdose and recovery, about battles won and lost, and about battles that lie ahead. The event was a powerful reminder of what this case is all about. Of course, we don’t need a reminder.

Colin Jorgensen Risk Management Litigation Counsel