Saying the lawsuit raises legal questions that shouldn't be dealt with in state court, one of the country’s largest pharmaceutical distributors – and one that stands as a defendant in many of the lawsuits now pending in courts across the country over the so-called opioid epidemic – has asked a federal judge to prevent a group of Chicago suburban communities from suing an array of drug manufacturers and distributors in Cook County Circuit Court.
On Aug. 22, San Francisco-based pharmaceutical distributor McKesson Corporation formally petitioned a federal judge in Chicago to remove to federal court the legal actions brought by two groups of Illinois municipalities, including about two dozen suburban cities and villages, over the distribution and sale of so-called opioid painkillers in their communities.
The removal request comes about three months since the municipalities, represented by attorney Ari Scharg and others with the firm of Edelson P.C., of Chicago, filed their lawsuits in Cook County Circuit Court.
Named plaintiffs in those actions included downstate Pekin and Peoria and more than 20 Chicago suburbs, including Melrose Park, Bellwood, Broadview, Harvey, Berkely, Berwyn, Chicago Heights, Hillside, Northlake, Oak Law, River Forest, Tinley Park, Dolton, Hoffman Estates, Maywood, North Riverside, Orland Park, Posen, River Grove, Stone Park, Chicago Ridge and Merrionette Park.
The complaints included three groups of defendants, classified as “manufacturer defendants,” “distributor defendants” and “prescriber defendants.”
Drugmakers named in the lawsuits included Purdue Pharma, of Stamford, Conn.; Cephalon, of Frazer, Penn.; Janssen Pharmaceuticals, of Titusville, N.J.; Insys Therapeutics, of Chandler, Ariz.; Endo Health Solutions, of Malvern, Penn.; Allergan, of Dublin, Ireland; and Mallinckrodt, of Staines-upon-Thames, United Kindgom; as well as several related corporate entities.
Identified as distributor defendants are AmerisourceBergen, of Chesterbrook, Penn., which has a distribution center in suburban Romeoville; Cardinal Health, of Dublin, Ohio, which has warehouses in Aurora and Waukegan; and McKesson, which also has an Aurora distribution center.
Prescriber defendants named in the lawsuits included doctors Paul Madison, William McMahon and Joseph Giacchine, who together operated Melrose Park Clinic Ltd., which did business as Riverside Pain Management in Riverside from 2013-2017. In the complaints, the plaintiffs called the clinic a “pill mill,” at which “enormous quantities of opioids were prescribed.”
According to the complaints, all of the defendants worked together to increase the use and distribution of opioid painkillers in these communities, allegedly boosting addiction and overdose rates in the process.
As part of their actions, the plaintiffs also took aim at the distributor defendants, asserting the distributors fell short of their responsibilities under the federal Controlled Substance Act to monitor, identify and stop “suspicious” orders of large quantities of opioids.
And that, said McKesson in its removal petition, is why the case should be sent to federal court.
“In alleging that Distributor Defendants owe a duty ‘to monitor, detect, and halt suspicious orders of opioids,’ Plaintiffs rely entirely on federal law and an Illinois law that merely references and incorporates federal law,” McKesson’s attorneys wrote in the petition. “… Plaintiffs do not and cannot identify a state law that specifically requires wholesale pharmaceutical distributors to ‘monitor, detect, and halt suspicious orders of opioids.’”
In filing their action in Cook County, the plaintiffs’ attorneys had openly admitted they had added the local “prescriber defendants” to help defeat an attempt by the pharmaceutical companies and distributors to transfer the case from Cook County court to federal court.
“The lawsuit was filed in Cook County because our clients feel that they will have more control over the litigation in state court. They are pursuing claims under Illinois law and want an Illinois judge to decide them. This is an epidemic that is felt locally, in our families and communities. The case should proceed locally as well,” Scharg said at the time the municipalities’ cases were filed.
Presently, virtually all opioid-related cases are pending before a federal judge in Cleveland. Should a federal judge agree that these cases belong in federal court, McKesson stated in its removal petition that it intends to immediately seek to send these cases to join the others in Ohio federal court.
The removal petition did not address the presence of the local doctors among the list of defendants.
The removal petition indicated the other manufacturer and distributor defendants had also consented to the removal request.
McKesson is represented in the action by attorneys Alexander S. Vesselinovitch and Matthew T. Connelly, of Freeborn & Peters, of Chicago.