Major opioid manufacturers have asked a judge to throw out the first test case of whether they must pay for the nation’s drug crisis, arguing that two Ohio counties cannot prove the drug companies’ actions were responsible for overdose deaths or other harms, newly unsealed court documents show.
The defendants’ motion was unsealed late Tuesday night
Lawyers for Purdue Pharma, Mallinckrodt Pharmaceuticals and other drug companies contend that Cuyahoga and Summit counties cannot sufficiently connect the tens of billions of legal painkillers the companies produced to fatalities and addiction.
Nor can the counties show that drug company sales calls caused doctors to overprescribe the medications, they said.
The Ohio counties “have no evidence that their alleged injuries were proximately caused by the collective ‘manufacturers’ ... rather than by criminal cartels trafficking in deadly street drugs,” the manufacturers argued in criticizing expert testimony presented by lawyers for the two counties.
The request that federal Judge Dan Polster toss out the lawsuit is a common pretrial tactic in civil litigation.
More significantly, it is the first full public airing of the legal defense manufacturers are likely to offer in the landmark lawsuit brought by nearly 2,000 cities, counties and other groups across the country, the largest civil case in U.S. history.
Polster has urged all sides to settle the case.
The drug producers’ motion targets the two counties because they are scheduled to go to trial first, in October, as a test case in the enormous lawsuit.
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With plaintiffs trying to prove the drug companies engaged in a civil racketeering enterprise, “it seems the fight is about how granular you have to be when you’re proving these types of ... claims,” said Elizabeth Chamblee Burch, a law professor at the University of Georgia.
“There’s kind of an inherent tension there because (racketeering) is about proving an aggregate wrong,” she said. “It’s the tension between proving a (racketeering) claim, which requires aggregate proof, versus what you can pin on these particular defendants.”
A person with knowledge of the defense strategy said the plaintiffs need to show that the companies were conspiring with one another and acting in concert.
That’s difficult to do because the companies are fierce competitors, said this person, who spoke on the condition of anonymity because Polster has warned people associated with the case not to comment on it. The idea that the defendants conspired is not consistent with the reality of their business.
The person said the plaintiffs have not been able to tie alleged false or misleading promotion by drug companies to harm in communities and are relying on statistical data that the defendants believe is poorly modeled.
More than 200,000 people have died of overdoses from legal painkillers in the past two decades. A similar number have succumbed to heroin and illicit fentanyl in the second and third waves of the epidemic.