The city of Chicago has moved another step closer to a trial date for its long-running legal claims against the makers and distributors of opioid pain medications, after a federal judge in Chicago shot down attempts by those pharmaceutical companies to dispense with the city’s lawsuit.
On March 31, U.S. District Judge Jorge L. Alonso sided completely with the city on the key legal questions needed to advance the case to the next step on the road to trial.
Alonso specifically said the city’s accusations against the drugmakers and distributors – that the companies allegedly deceived doctors into over-prescribing their painkillers, allegedly leading to addiction in the general population, and resulting high costs to the city in dealing with the alleged associated problems – were enough to allow the lawsuit to continue, even if the city can’t provide “granular proof” of specific actions allegedly taken by the pharmaceutical companies in pursuit of its ambitions to boost the sale of the pain medications.
David I. Ackerman
| Motley Rice
The pharmaceutical companies “are accused of selling a product that was highly addictive and ignoring signs that their customers were abusing the product, causing it to be diverted into illicit channels, to the detriment of the end-users’ health and the stability of the communities they live in, and in violation of defendants’ legal duties,” Judge Alonso wrote.
“These allegations, if proven, describe conduct that is ‘immoral, unethical, oppressive or unscrupulous.’”
The city of Chicago has been in court against the medication makers and distributors since it first filed suit in 2014. The lawsuit has targeted such pharmaceutical giants as Purdue Pharma, the maker of the drug known as Oxycontin; Johnson & Johnson; Janssen Pharmaceuticals; Endo Pharmaceuticals; Allergan PLC; Teva Pharmaceuticals; and Cephalon, among others.
In its lawsuit, the city has accused the pharmaceutical companies of committing consumer and insurance fraud, among other alleged misdeeds, in promoting the use of so-called opioid painkillers, beyond their prior, more limited use in post-surgical and end-of-life care.
The city claimed the explosion of opioid use led to abuse and addiction among the public, saddling the city and other governments with high costs to address a public health crisis of addiction and overdose deaths. The lawsuit asserts the ready availability of opioid painkillers led to people also using even more dangerous and addictive drugs, including heroin and fentanyl.
The lawsuit specifically alleged the drugmakers encouraged doctors to prescribe the companies’ opioid products for the treatment of chronic pain and downplayed the risk of addiction and other problems.
The lawsuit was eventually swooped up in 2017 into a massive consolidated action, including thousands of other lawsuits from throughout the country, leveling similar accusations against the drugmakers. The bulk of those cases continue remain in federal court in Ohio, before U.S. District Judge Dan Polster.
While some litigants have likened the mass action to a “black hole,” Judge Polster in 2019 granted Chicago’s request to send it back to Chicago federal court, to continue towards a so-called bellwether trial. Such bellwether cases are used by courts essentially as test cases, to help determine the viability and potential fate of the cases remaining in the larger overall consolidated mass action.
After it landed back in Chicago, the pharmaceutical companies again attempted to dismiss the case.
They argued the city’s lawsuit failed to state a legally sound claim, and that the lawsuit was preempted by federal controlled substances law.
The drug companies also asserted the city should be barred from suing the drugmakers for the costs of providing city services.
Judge Alonso, however, said the city’s claims were on firmer legal footing than the pharmaceutical companies asserted.
The judge said the city’s allegations of fraud against the companies can proceed.
He noted the city’s claims against the defendant companies may overlap with the duties imposed on the companies by federal drug laws – specifically, claims that the drug makers and distributors didn’t do enough to keep tabs on how much of their painkiller pills were being sold and used, and stop “suspicious orders.”
But Alonso said the city’s claims were distinct enough from those imposed by federal law, to allow the case to continue.
Alonso further shot down the defendants’ attempt to shut down the city’s claims for money to cover its costs. He said the city does not need to prove, at this point, any specific actions taken by the medication makers and distributors to mislead doctors into over-prescribing painkillers, leading to the alleged increase in addiction and related societal ills.
The city, Alonso note, has indicated it will rely in part on “expert testimony” introduced in earlier proceedings in the Ohio court, that the city says “will establish that defendants’ marketing and sales activities caused an increase in opioid use, which caused an increase in opioid-related harm in Chicago and other communities.”
At this stage, that is enough to allow the city to continue, he said.
A trial date has not yet been set in the case.
The city is represented by attorney David I. Ackerman and others with the firm of Motley Rice LLC, of Washington, D.C.; Kenneth A. Wexler and others with the firm of Wexler Wallace LLP, of Chicago; and attorneys with the city’s Department of Law.
The defendants are represented, among others, by attorneys Charles C. Lifland, Amy R. Lucas, and others with the firm of O’Melveny & Myers LLP, of Los Angeles; Sherry A. Knutson, of Tucker Ellis LLP, of Chicago; Tinos Diamantatos and others with the firm of Morgan Lewis & Bockius LLP, of Chicago, Philadelphia and Miami, Fla; Jonathan L. Stern and others with the firm of Arnold & Porter Kaye Scholer LLP, of Washington, D.C., and Los Angeles; Carole S. Rendon and Justin R. Donoho, of Baker & Hostetler LLP, of Cleveland and Chicago; Karl Stampfl and others of the firm Kirkland & Ellis LLP, of Chicago and Washington, D.C.; and Andrew J. O’Connor and Sarah M. Kimmer, of Ropes & Gray LLP, of Chicago.