June 20, 2018
On Monday, June 18, 2018, Justice Jerry Garguilo of the Suffolk County Supreme Court denied the application to dismiss lawsuits against several opioid manufacturers including Purdue Pharma, Endo Health Solutions, Teva Pharmaceuticals, Janssen Pharmaceuticals Inc., and Insys Therapeutics, Inc. Justice Garguilo did grant a dismissal to defendant Allergan based on lack of personal jurisdiction as this manufacturer is headquartered in Ireland. These are some of the first substantive rulings to come out of cases brought regarding prescription painkillers.
Plaintiffs, who are various municipalities and counties in New York, alleged the manufacturer defendants employed persistent marketing strategies and advertising campaigns that seek to change the perception of risks associated with prescription opioids and to de-stigmatize and normalize the long-term use of opioids from chronic non-malignant pain. It is further claimed that the manufacturer defendants are aiming their marketing strategies and campaigns at the general public through websites, print advertisements and educations materials and publications. Plaintiffs claim the manufacturer defendants have even hired “key opinion leaders” and funded “front groups” such as the American Pain Foundation and the American Academy of Pain Medicine to further their strategy of de-stigmatizing and normalizing the use of opioids.
Justice Garguilo allowed the cases brought by the New York counties to go forward alleging violations of New York’s consumer fraud and false advertising laws as well as public nuisance, negligence, fraud and other claims. Justice Garguilo stated the defendants have created a public health crisis that has resulted in the New York counties spending money on treatment programs for those who were addicted or overdosed and plaintiffs are not simply seeking to recoup medical and drug costs incurred by their employees and Medicaid beneficiaries.
The defendants asserted federal pre-emption on the basis that the U.S. Food and Drug Administration (“FDA”) approved opioids for chronic pain. Justice Garguilo rejected this argument, opining that the FDA’s approval of opioids for consumption by the general public does not mean states may not seek to protect their residents from the unlawful activities of defendants concerning those drugs.
Defendants also claimed the municipal cost recovery doctrine prohibited the counties from suing over opioidsas it bars governments from obtaining tort damages for required public services like police and fire protection. Justice Garguilo rejected this argument as well, stating defendants failed to cite cases which prohibit the government from suing “to remedy public harm caused by intentional, persistent course of deceptive conduct.”
Justice Garguilo’s ruling comes as many of the same defendants have also moved to dismiss claims in the federal multidistrict litigation in Cleveland. This is a foreshadowing of more to come as this is the first court to address substantive arguments of cases filed.