Attorneys for a group of Illinois municipalities are fighting an attempt to combine their lawsuit against opioid manufacturers and distributors with a mass of similar litigation already pending in Cleveland federal court.
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 about four months ago.
The complaints included three groups of defendants, classified as manufacturers, distributors and prescribers. In arguing to keep the issue in Cook County, the plaintiffs restated their position the manufacturers allegedly aggressively and fraudulently marketed opioids, said the distributors didn’t “serve as an essential check on the diversion and misuse of prescription opioids” and alleged the prescribers capitalized on those conditions, “creating a causal chain that directly injured” their communities.
Ari Scharg
| Edelson P.C.
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.
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.
Named 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 San Francisco-based McKesson Corporation, which also has an Aurora distribution center.
Prescriber defendants named in the lawsuits included doctors Paul Madison, William McMahon and Joseph Giacchino, who together operated Melrose Park Clinic Ltd., which did business as Riverside Pain Management in Riverside from 2013-2017. In original complains the plaintiffs called the clinic a “pill mill,” at which “enormous quantities of opioids were prescribed.”
The plaintiffs say the defendants worked together to increase the use and distribution of opioid painkillers in their communities, allegedly boosting addiction and overdose rates. They also called the multidistrict litigation in Cleveland a “black hole” and said the defendants’ attempt to remove their case to federal court involved using “exactly the same flawed removal papers (the defendants) filed two weeks ago” in another Illinois federal court.
McKesson filed its removal petition Aug. 22, arguing the municipalities “do not and cannot identify a state law that specifically requires wholesale pharmaceutical distributors to ‘monitor, detect, and halt suspicious orders of opioids,’ ” in accordance with their allegations, supporting the position the matter is better suited to federal court.
The municipalities also noted the removal notice was not signed by all the defendants, saying Madison, Giacchino, Actavis PLC and Watson Pharmaceuticals haven’t joined the effort and have missed a 30-day deadline to do so. They also point out two similar ongoing actions in Utah were remanded from federal court to a state circuit court, and suggest the same should be true of the Cook County matter.
Janssen asked the court to sever the claims against the prescribers, but the plaintiffs said that strategy effectively asks the court to create federal diversity jurisdiction. They further said the prescribers are “necessary parties” because of their role in the allegedly illegal conduct and the ability to equitably calculate the requested relief.
The plaintiffs also said Janssen was wrong to assert they “fraudulently misjoined” the prescribers, saying courts addressing that concept “in the opioid context have similarly and overwhelmingly rejected its application.”