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 DENYING TEVA AND ACTAVIS GENERIC
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
AARON POLSTER UNITED STATES DISTRICT JUDGE.
the Court is the Teva and Actavis Generic Defendants'
Motion for Summary Judgment (Doc. #: 1891).
For the reasons set forth below, the Motion is
Teva and Actavis Generic (the “Teva
Defendants”), Plaintiffs assert claims based on two
factual theories: (1) fraudulent marketing; and (2) failure
to maintain effective controls against diversion. The Teva
Defendants seek summary judgment on all claims,
asserting Plaintiffs do not have sufficient evidence to show:
(1) the Teva Defendants engaged in the allegedly wrongful
conduct; or (2) any such conduct caused cognizable harm to
Plaintiffs. The Court addresses these arguments below.
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.
Evidence to Support Claims.
Teva Defendants assert that, as a matter of law, Plaintiffs
cannot show they engaged in fraudulent marketing activity
within the statute of limitations period, i.e. after
October of 2012.Plaintiffs respond that, after 2012, the
Teva Defendants engaged in indirect fraudulent marketing
activities, such as funding front groups, sponsoring a book
ghostwritten by the American Pain Foundation, and other
promotional endeavors. See Pls. Opp. at 14-15 (Doc. #:
example, Plaintiffs point to evidence that, in 2015, Teva
sponsored a “Pain Matters” program that featured
doctors discussing “Evolving Roles, Same Goals: The
Changing Landscape of Pain Management.” Pls. Ex. 109 at
ECF pp. 2-3 (Doc. #: 2257-7). One of the doctors, Jeff Gudin,
noted that the “progressive” increase in opioid
prescriptions, from 1991 to 2013, was the result of
“improved abilities [by doctors] to assess pain,
” and their “willingness to treat chronic pain
with a treatment regimen that includes opioids.”
Id. at ECF p. 7. Gudin recognized this greater
volume had also resulted in issues related to misuse, abuse,
and diversion, which he said highlighted “the need to
develop strategies to prevent prescription opioid misuse and
abuse.” Id. Next, Gudin cited a study which he
said found: “only 3.27 percent of patients
being treated with chronic opioid therapy had a high
likelihood of abuse or addiction . . . and a 25 times
lower rate of abuse or addiction in patients who
didn't have a prior history of abuse or addiction.”
Id. at ECF p. 8 (emphasis added). Gudin opined that
it was “important” to “recognize that the
risk is . . . relatively low for patients with
chronic non-malignant pain who don't have a previous
history of addiction.” Id. (emphasis added).
expert, on the other hand, has opined that the rates of
opioid misuse following medical use range from 21 to 29
percent, with opioid addiction risk ranging from eight
to 12 percent, with even higher rates for
individuals who are on high doses of opioids for long periods
of time. See Keyes Rpt. at 11-16 (Doc. #: 1868-4)
(expert report of epidemiologist, Katherine Keyes). In light
of conflicting evidence like this, which suggests the rate of
addiction is actually much higher than that conveyed by the
Teva Defendants' spokesperson,  the record presents genuine
issues of material fact regarding whether the Teva Defendants
engaged in misleading promotional activities after 2012.
Accordingly, summary judgment is not warranted on this
Causation of Harm.
Teva Defendants assert Plaintiffs cannot show their marketing
activities caused harm in the Track One Counties.
See Teva Mem. at 12-15 (Doc. #: 1891-2). More
specifically, the Teva Defendants contend Plaintiffs cannot:
(1) identify a single prescriber in Ohio who relied on their
allegedly false marketing; or (2) show any such prescription
actually caused the harms for which Plaintiffs seek relief.
See Teva Mem. at 13-15 (Doc. #: 1891-2).
discussed more fully in the Court's Order Denying
Defendants' Motion for Summary Judgment on Causation
(Doc. #: 2561), Plaintiffs have presented sufficient evidence
upon which a factfinder could reasonably conclude that
Defendants' misleading marketing activities resulted in a
substantial increase in the supply of prescription opioids,
which, in turn, proximately caused harm to Plaintiffs.
See Order at 3-6 (Doc. #: 2561). This same analysis
applies to the Teva Defendants.See id.; see also Doc.
#: 2421-3 (Teva's marketing plan, noting consultant
meetings and medical education programs proved incredibly
effective in driving prescription growth). In other words,
construing the evidence in a light most favorable to
Plaintiffs, the record supports an inference that the Teva
Defendants' alleged promotional misconduct was a
substantial factor in producing the harm allegedly suffered
by Plaintiffs. See Order at 5-7 (Doc. #: ...