Cook County Record

Tuesday, August 20, 2019

Judge says won't let opioid defendants use slow federal process to 'avoid litigating' opioid claims in IL court

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By Jonathan Bilyk | Jul 17, 2019


Attorney Ari Scharg, of Edelson P.C., is representing the Illinois Public Risk Fund in its litigation against the makers and distributors of so-called opioid painkillers. | Youtube screenshot

An organization which helps Illinois local governments pool their workers' compensation insurance has won the chance to sidestep the federal courts’ “black hole” as it pursues its own legal claims against the makers and distributors of so-called opioid painkillers.

On July 15, rather than waiting on others in the federal judiciary to decide what to do with the case, U.S. District Judge Matthew F. Kennelly granted the request of the Illinois Public Risk Fund to send the IPRF’s opioid lawsuit back to Cook County Circuit Court.

The ruling comes a little over two months since the IPRF first filed suit in Cook County court against about 30 companies, organizations and individuals, many of whom have been defendants in thousands of other legal actions filed in Illinois and across the U.S.


U.S. District Judge Matthew Kennelly

The IPRF is represented in the case by attorney Ari J. Scharg and others with the firm of Edelson P.C., in Chicago.

Prominent defendants in the action include national and international companies, such as painkiller makers Purdue Pharma, Teva Pharmaceuticals, Johnson & Johnson and Actavis, and pharmaceutical distributors McKesson Corporation and AmerisourceBergen, among others.

However, the IPRF’s lawsuit also included a group of Illinois-based defendants, including what the complaint identified as “front groups,” including the American Academy of Pain Medicine, the American Geriatric Society and the American Pain Society, who stand accused of lending an air of legitimacy to the widespread use of opioid drugs.

The complaint also named as defendants physician Paul Madison and Joseph Giacchino, who were involved in the management of Riverside Pain Management in Melrose Park from 2013-2017, and who in that role allegedly overprescribed opioid medications.

The IPRF lawsuit was virtually identical to a lawsuit also filed last fall by the Edelson lawyers on behalf of two other quasi-governmental entities, similar to IPRF: the Intergovernmental Risk Management Agency, which manages workers’ comp claims for 72 governments in northeastern Illinois, and the Intergovernmental Personnel Benefit Cooperative, which helps 131 local governments provide health insurance benefits to employees and retirees.

All defendants named in the lawsuits were accused of playing some role in an alleged campaign of marketing and misinformation to boost the sale of opioid painkiller pills, like Oxycontin and Percocet, allegedly leading to a nationwide surge in addiction and associated societal ills and treatment costs.

The claims mirror those in nearly all other lawsuits against most of the defendants in lawsuits across America.

Most of those opioid-related lawsuits have been removed to federal court by the opioid defendants from the local courts in which most were filed, and have been merged into a mass action of similar cases from across the country in a multi-district litigation (MDL) pending before a federal judge in Ohio.

Pharmaceutical distributor defendant McKesson also sought to remove both of the recent lawsuits brought by the workers’ comp claim organizations.

That move was opposed by the plaintiffs, who argued the cases have strong enough ties to Cook County and Illinois to remain in the county court, and avoid the “black hole” of the federal mass action in Ohio.

Last November, a federal judicial panel sent the lawsuit filed by IRMA to the federal MDL in Ohio.

However, in the IPRF case, Judge Kennelly said the slowness of the process in Ohio persuaded him to rule on the plaintiffs’ request to send the case back to Cook County court, rather than wait any longer.

Kennelly said he believed McKesson and other defendants were removing cases to federal court to take advantage of the slowness of the MDL process, in a “deliberate strategy … to delay – or altogether avoid – litigating these cases.”

“The Court believes that deferring decision on the motion to remand would risk significant unfairness to the plaintiff,” Judge Kennelly wrote. “The judge presiding over the MDL has elected not to rule on any motions for remand or permit discovery for a substantial period of time. Thus to defer ruling now could have the effect of staying the litigation indefinitely.”

In this case, Kennelly said the claims presented by the plaintiffs are based in Illinois state law, not federal law.

McKesson and other defendants argued the claims create a conflict with the federal Controlled Substances Act, and noted the IPRF’s complaint includes a claim the defendants violated their duty under that federal law to “investigate, report, and stop suspicious orders of prescription opioids.”

The judge, however, said the plaintiff also lays enough claims under Illinois state laws, including the Illinois Controlled Substances Act, the Illinois Wholesale Drug Distribution Licensing Act and other state laws, to keep the legal action out of federal court.

“As many other courts have found in similar cases concerning the manufacture and distribution of opioids, these alleged state-law duties mean that the construction of the Controlled Substances Act is not a necessary part of the plaintiff’s claims,” the judge said.

Kennelly also rejected the defendants’ claim such state-based legal actions would interfere with the ability of the federal government to regulate the manufacture, sale and distribution of opioid painkillers and other drugs.

“Indeed, the Controlled Substances Act expressly disclaims an intent to occupy the legislative field and permits states to enact their own regulatory schemes – as Illinois and many other states have done – as long as they are not inconsistent with the Act,” the judge said.

McKesson is represented in the action by attorneys Daniel L. Stanner and Kyle A. Cooper, of Tabet DiVito & Rothstein LLC, of Chicago.

Other defendants in the case have been represented by attorneys from the firms of Arnold & Porter Kaye Scholer LLP , of Chicago; Tucker Ellis LLP, of Chicago; Armstrong Teasdale LLP, of St. Louis; and Jaszczuk P.C., of Chicago.

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Organizations in this Story

AmerisourceBergen Armstrong Teasdale LLP Arnold & Porter Kaye Scholer Circuit Court of Cook County Edelson, PC Johnson & Johnson Mckesson Corporation Purdue Pharma L.P Tabet Divito & Rothstein LLC U.S. District Court for the Northern District of Illinois

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