Oakland, Los Angeles County join opioid lawsuit in Orange County

SANTA ANA -- Los Angeles County and the city of Oakland have joined the lawsuit against opioid manufacturers scheduled for trial in Orange County Superior Court next year.

The jurisdictions join Orange County and Santa Clara County as plaintiffs in the five-year-old action against Purdue Pharma and other companies accused of illegally marketing opioid-based drugs.

Superior Court Judge Kim G. Dunning approved the move on Friday. It follows an appellate court ruling in a separate case that said district attorneys in other counties can't seek restitution and civil penalties for conduct outside their jurisdiction. Abbott Laboratories et al. v. Superior Court, 2018 DJDAR 5247.

The moves aren't related, but Dunning said Abbott Laboratories "is really very helpful" when considering how the trial should proceed because it affirmed a county action can lead to statewide injunctive relief.

"Everybody in Abbott recognized that this court can issue statewide injunctive relief, if appropriate," Dunning said. "It doesn't matter if you've got two counties or all 58 counties in terms of injunctive relief. In terms of civil penalties, the number of cities or counties makes a huge difference."

With that, Dunning bifurcated the bench trial scheduled to begin in June 2019. The first portion will consider liability, causation and the right to abatement. All monetary issues, such as actual abatement and civil penalties, will be considered in the second portion, which Dunning said if necessary will be scheduled to allow for discovery.

The lawsuit includes three causes of action -- false advertising, public nuisance and unfair competition -- but only Orange County is a party to the unfair competition claim. People v. Purdue Pharma et al. (Orange Super. Ct., filed May 21, 2014).

Defense attorneys said the additional plaintiffs warranted a six-month trial delay.

"It is going to substantially change the scope of discovery in this case," said Michael G. Yoder of O'Melveny & Myers LLP, who represents Johnson & Johnson's Janssen Pharmaceuticals.

Representing Orange County, Linda Singer of Motley Rice LLP said liability issues are the same in every county. Yoder disagreed.

"In order to determine if there's a public nuisance within a particular county, we're going to have to look at what's going on in that county," Yoder said. "There clearly are differences in the composition of Orange County versus the city of Oakland, for example."

Dunning said she'd be surprised if plaintiffs could prove public nuisance in one county but not another.

"I tend to think the evidence would be straightforward," Dunning said.

Dunning said bifurcating liability and damages "will clearly change the character of discovery leading up to the June trial."

The lead plaintiff's attorney is Mark P. Robinson, Jr. of Robinson Calcagnie, Inc. He was joined in court Friday by Orange County District Attorney Tony J. Rackauckas and Senior District Attorney Tracy E. Hughes. Senior District Attorney Joseph P. D'Agostino was handling the case with Robinson, but he retired in March.