United States District Court, N.D. Ohio, Eastern Division
IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO: Track One Cases
OPINION AND ORDER REGARDING DEFENDANTS' SUMMARY
JUDGMENT MOTIONS ON CAUSATION
AARON POLSTER, UNITED STATES DISTRICT JUDGE.
the Court are three related summary judgment motions filed by
Defendants: (1) the Pharmacy Defendants' Motion for
Summary Judgment on Causation (Doc. #:
1885); (2) the Manufacturer Defendants' Motion
for Summary Judgment for Plaintiffs' Failure to Offer
Proof of Causation (Doc. #: 1894); and (3)
the Distributor Defendants' Motion for Summary Judgment
on Proximate Causation Grounds (Doc. #:
1920). For the reasons set forth below, the Motions
Court hereby incorporates the legal standards set forth in
the Court's Opinion and Order regarding Plaintiffs'
Summary Judgment Motions Addressing the Controlled Substances
Act, see Doc. #: 2483.
remaining claims in this case are broadly based on two
theories of recovery: (1) public nuisance, and (2)
conspiracy. Under the theory of public nuisance, Plaintiffs
assert claims based on (a) Ohio statutory law; and (b) Ohio
common law, styled “absolute public nuisance.”
Under the conspiracy theory, Plaintiffs assert claims based
on (a) the Racketeer Influenced and Corrupt Organizations Act
(“RICO”); (b) the Ohio Corrupt Practices Act; and
(c) civil conspiracy under Ohio common law. Plaintiffs assert
all claims against all Defendants.
the Manufacturers, under each claim, Plaintiffs assert two
theories of relief: (1) fraudulent marketing; and (2) failure
to maintain effective controls against diversion. Against the
Distributors and Pharmacies, under each claim, Plaintiffs
assert only the latter theory of relief, i.e.
failure to maintain effective controls against diversion.
With the above-listed motions, Defendants seek summary
judgment on all claims, asserting Plaintiffs do not have
sufficient evidence of causation. The Court first examines
the fraudulent marketing claims against the Manufacturers,
followed by the claims against all Defendants for failure to
maintain effective controls against diversion.
Fraudulent Marketing Claims Against Manufacturers.
Manufacturers assert that, as a matter of law, Plaintiffs
cannot show their allegedly fraudulent marketing activities
proximately caused the harms that Plaintiffs seek to redress
in this lawsuit ‒ that is, harms caused by an increase
in and/or oversupply of opioid prescriptions. More
specifically, the Manufacturers assert Plaintiffs cannot
show: (1) the alleged marketing misconduct caused medically
unnecessary and/or excess prescriptions in the Track
One Counties; or (2) these excess prescriptions
proximately caused harm to Plaintiffs. The Manufacturers also
assert that Plaintiffs may not rely on aggregate proof, but
must prove causation individually, connected to the specific
conduct of each Defendant in the case.
Effect of Alleged Marketing Misconduct.
Manufacturers assert Plaintiffs cannot show their allegedly
fraudulent marketing activities resulted in unnecessary
and/or increased opioid prescriptions in the Track
One Counties. See Manuf. Brief at 6-8 (Doc. #:
1894-1). Plaintiffs respond with extensive evidence they
contend demonstrates, both collectively and individually,
that the Manufacturers engaged in a widespread promotion and
marketing campaign that trivialized the medical risks of
addiction and exaggerated the benefits of long-term opioid
use. See Pls. Opp. at 2-18 (Doc. #: 2204). Construed
in the light most favorable to Plaintiffs, this evidence
would allow a reasonable jury to find that each Manufacturer
engaged in misleading marketing activities. See, e.g.,
id.; Perri Rpt. at 86-137 (listing marketing messages by
defendant); Pls. Ex. 8 (Doc. #: 2404-1) (Mallinckrodt); Pls.
Ex. 22 (Doc. #: 2408-2 (Allergan); Pls. Ex. 27 (Doc. #:
2408-7) (Mallinckrodt); Pls. Ex. 41 (Doc. #: 2414-7)
(Allergan); Pls. Ex. 112 (Doc. #: 2424-4) (Teva); Pls. Ex.
146 (Doc. #: 2431-4) (Janssen).
addition, Plaintiffs point to evidence that suggests, over
this same time period, the supply of prescription opioids
dramatically increased. For instance, the expert opinion of
Jonathan Gruber, a health economist, shows that, from 1997 to
2016, shipments of prescription opioids nationwide increased
by more than 500 percent. See Gruber Rpt. at 16 (Doc. #:
1916-5). Another expert, Meredith Rosenthal, a health
economist, opines: “the combined effect of the
Defendant [M]anufacturers' promotion of prescription
opioids since 1995 was a substantial contributing factor to
the increase in the use of prescription opioids” in the
Track One Counties.” Rosenthal Rpt. ¶ 8
(Doc. #: 1913-4). Likewise, Matthew Perri, III, an expert in
pharmaceutical marketing, states: “Defendants'
approach to marketing opioids was purposeful, aggressive, and
effective in increasing sales. The marketing outcomes,
including Defendants' own internal metrics, support the
fact that the Defendants were able to persuade prescribers
and other stakeholders to increase the use of opioids for
pain.” Perri Rpt. at 139 (Doc. #: 1999-18). Construing
this evidence in the light most favorable to Plaintiffs, a
factfinder could easily conclude the Manufacturers'
misleading marketing activities resulted in a substantial
increase in the supply of prescription opioids. This
conclusion is further buttressed by Defendants' own
documents. See, e.g., Pls. Ex. 91 (Doc. #: 2421-3)
(Teva's marketing plan, noting consultant meetings and
medical education programs proved incredibly effective in
driving prescription growth).
record, the Court finds Plaintiffs have shown evidence
sufficient to support their claim that the Manufacturers'
allegedly fraudulent marketing activities caused an increase