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In re National Prescription Opiate Litigation

United States District Court, N.D. Ohio, Eastern Division

September 3, 2019

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

          DAN AARON POLSTER UNITED STATES DISTRICT JUDGE.

         Before the Court is the Teva and Actavis Generic Defendants' Motion for Summary Judgment (Doc. #: 1891). For the reasons set forth below, the Motion is DENIED.

         Against Teva and Actavis Generic (the “Teva Defendants”[1]), 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, [2] 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.

         I. Legal Standard.

         The 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.

         II. Analysis.

         A. Fraudulent Marketing.

         1. Evidence to Support Claims.

         The 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.[3]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.[4] See Pls. Opp. at 14-15 (Doc. #: 2220).

         For 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).

         Plaintiffs' 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, [5] 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 ground.

         2. Causation of Harm.

         The 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).

         As 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.[6]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. #: ...


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