Plaintiffs to seek review of lost $52B suit against opioid makers

After an Orange County judge tentatively ruled four major drug companies were not liable for the state's opioid crisis, a plaintiffs committee seeking $52 billion on behalf of the state, vowed to appeal the decision.

"The people of California will have their opportunity to pursue justice on appeal and ensure no opioid manufacturer can engage in reckless corporate practices that compromise public health in the state for their own profit," The Plaintiffs' Executive Committee said in a statement late Monday.

Reacting to the ruling Monday and Tuesday, the drug companies said their marketing of opioids such as Oxycontin, Kadian, and Duragesic, were entirely legal and appropriate, as the judge had said in his ruling.

The plaintiffs committee worked alongside the offices of the Santa Clara County counsel, Orange County district attorney, Los Angeles County counsel, and Oakland city attorney to bring claims under false advertising, public nuisance, and unfair competition laws.

Among other rebukes, the committee led by South Carolina attorney Joe Rice of Motley Rice LLP, said some of the defendant drug companies had committed discovery violations in other opioid lawsuits throughout the nation.

"This ruling is related to one state case and does not impact the ongoing nationwide litigation, including the ongoing jury trial in New York State Court, the Ohio jury trial in federal court, and the outcome in the West Virginia federal bench trial," the statement read. "It must also be noted that some defendants have blatantly violated discovery rules and deadlines in these trials as they continue to produce damaging documents and evidence that further exposes their culpability."

Filed in 2014, the lawsuit accuses Janssen Pharmaceuticals, Teva Pharmaceuticals, Endo Pharmaceuticals and Allergan PLC of fueling an opioid crisis in the state by downplaying risks of addiction in their marketing. People v. Purdue Pharma et al., 14-00725287 (Orange Super. Ct., filed May 21, 2014).

In a 42-page tentative ruling Monday, Orange County Judge Peter Wilson said the plaintiffs failed to prove an actionable public nuisance for which the drug companies are liable. He found that all of the opioid products at issue in the case are classified as Schedule II, and carry "a high potential for abuse," and that while there are patients for whom prescription opioids are appropriate, a person can become addicted even if the person takes them as prescribed by their doctor.

Wilson further pointed out that the Food and Drug Administration, the California Legislature, and the drug companies were fully aware of the drugs' potential for abuse but that the federal government, through the FDA and Drug Enforcement Administration, "at all material times approved of the defendants' respective opioid medications for their approved uses."

"Defendants do not dispute that there is an opioid crisis, they dispute whether plaintiffs have proven that the opioid crisis constitutes an actionable public nuisance for which defendants are liable," Wilson wrote, commenting on the plaintiffs' public nuisance claim.

He found that while the interference with collective social interests" caused by the abuse of opioids is "substantial," the plaintiffs failed to prove the element of "unreasonable" inference as it is defined in ConAgra, a public nuisance case over lead paint which the plaintiffs relied on heavily throughout the trial. People v. ConAgra Grocery Products Company, 17 Cal. App. 5th 51 (2017).

Wilson ultimately ruled in the drug companies' favor on all claims. His decision could influence some 3,000 opioid lawsuits filed throughout the U.S. and create a road map for future settlements.

Johnson & Johnson, represented by Mike Yoder, and Steve Brody of O' Melveny & Myers said:

"The well-reasoned tentative decision reflects the facts of the case: Janssen's actions relating to the marketing and promotion of its important prescription pain medications were appropriate and responsible, and did not cause any public nuisance. We recognize the opioid crisis is a tremendously complex public health issue and we have deep sympathy for everyone affected.

Teva, represented by Morgan Lewis partners Collie James and Wendy West Feinstein and associate Adam Teitcher said:

"The Court held a thorough nearly five-month-long trial and carefully considered all of the evidence presented by the plaintiff in support of their claims against these manufacturing defendants before rendering its findings in a 42-page ruling in favor of defendants on all claims. This comprehensive and well-reasoned decision underscores the lawfulness of Teva and its affiliates' conduct in the context of this complex public health issue."

Endo, represented by John Hueston and Moez Kaba of Hueston Hennigan LLP said:

"The court's thorough and thoughtful opinion reflects the evidence as it came in over months of testimony. Endo did not make false or misleading statements, and Endo's lawful conduct did not cause the widespread public nuisance at issue in plaintiffs' complaint," said Hueston.