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 DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT BASED ON STATUTES OF LIMITATIONS
AARON POLSTER, UNITED STATES DISTRICT JUDGE.
the Court are the Manufacturers' and Distributors'
Motion for Partial Summary Judgment on Statute of Limitations
Grounds (Doc. #: 1896) and Pharmacy
Defendants' Motion for Summary Judgment Based on the
Statute of Limitations (Doc. #: 1874). For
the reasons stated below, both motions are
assert undisputed evidence establishes that Plaintiffs,
County of Cuyahoga and County of Summit, knew or should have
known facts sufficient to permit them to assert their claims
long before their original Complaints were filed on October
27, 2017 and December 20, 2017, respectively. (Doc. #:
1896-1; Doc. #: 1874). In response,
Plaintiffs contend none of their claims fail on limitations
grounds, either because: (1) there is no limitations period
applicable to the claim; or (2) there exist material fact
questions concerning the claim's accrual dates, whether
Plaintiffs exercised reasonable diligence to discover facts
necessary to bring suit, and the applicability of tolling
doctrines. (Doc. #: 2122-1).
are three categories of Defendants ‒ Manufacturers,
Distributors, and Pharmacies ‒ and they seek to assert
the statute of limitations defense in different ways.
Manufacturers and Distributors seek only to preclude
Plaintiffs from recovering damages based on conduct
pre-dating October 27, 2012. This date was calculated by
counting back five years from October 27, 2017, which is the
date Cuyahoga County-the first-filing Plaintiff-filed its
original complaint. The five-year look-back is based on the
five-year limitations period applicable to OCPA claims.
See Ohio Rev. Code (“O.R.C.”)
§2923.34(J). (Doc. #: 1896-1 at 1-4,
12-25). Manufacturers and Distributors do not seek
to bar claims based on conduct that occurred within the
five-year look-back period. (Id. at 1).
contrast, Pharmacy Defendants, which are sued only in their
capacity as distributors, move separately for dismissal of
claims that accrued shortly before or after they allegedly
ceased distribution of prescription opioids. The Pharmacies
adopt Manufacturers' and Distributors' arguments
regarding the accrual rules, applicable statutes of
limitations, tolling doctrines, and what Plaintiffs allegedly
knew or should have known prior to October 27, 2012. (Doc. #:
1874 at 1).
discussed below, the Court concludes Defendants'
arguments fail with regard to several of Plaintiffs'
claims as a matter of law and undisputed fact, either because
there simply is no applicable statute of limitations (in
claims for public nuisance and for equitable relief under
RICO), or it is clear that the limitations period has not run
(in Plaintiffs' OCPA claims).
Plaintiffs' other claims (for damages under RICO and for
civil conspiracy), Defendants make strong arguments that the
applicable limitations period expired after these claims
accrued and before Plaintiffs filed suit. Ultimately,
however, given the enormous volume and complexity of facts
relevant to the parties' positions, the Court concludes
summary judgment is not the appropriate vehicle for resolving
questions regarding the dates these claims accrued or the
periods they were tolled. That is, claim-accrual date issues,
and questions of tolling, are appropriately determined only
after a presentation of all the evidence at trial. Because
the existing record demonstrates material factual disputes on
these issues, the Court cannot conclude the evidence
“is so one-sided that [Defendants] must prevail as a
matter of law.” See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986); Iron Workers
Local Union No. 17 Ins. Fund & Its Trustees v. Philip
Morris Inc., 29 F.Supp.2d 801, 805 (N.D. Ohio 1998)
(“The statute of limitations issues are best decided by
a jury at trial.”). In so ruling, the Court notes that,
at trial, it will have an opportunity to reevaluate the
sufficiency of the evidence and nothing in this Order
prevents the Court from granting judgment as a matter of law,
if warranted. See Fed. R. Civ. P. 50.
Applicable Statutes of Limitation.
limitations periods applicable to Plaintiffs' five
different types of claims are discussed below.
Common law absolute public nuisance.
contend Plaintiffs' common law absolute public nuisance
claims are governed by Ohio's four-year statute of
limitations applicable to “certain torts.”
See O.R.C. § 2305.09. (Doc. #: 1896-1 at 5).
Plaintiffs respond that no statute of limitations applies to
these claims. (Doc. #: 2212-1 at 1 n.2, 17-19). For the
reasons detailed below, the Court agrees with Plaintiffs.
nuisance is the “wrongful invasion of a legal right or
interest.” Taylor v. Cincinnati, 55 N.E.2d 724
(Ohio 1944); Kramer v. Angel's Path, L.L.C., 882
N.E.2d 46 (Ohio Ct. App. 2007). Ohio law recognizes
two varieties of Ohio public nuisance
claims-“absolute” and “qualified.”
Each is based on differing types of alleged conduct and each
requires different elements of pleading and proof. See,
e.g., City of Cleveland v. Ameriquest Mortg. Sec.,
Inc., 621 F.Supp.2d 513 (N.D. Ohio 2009),
aff'd, 615 F.3d 496 (6th Cir. 2010);
Kramer, 882 N.E.2d at 52.
nuisance claims may be premised either on conduct that is:
(i) intentional or unlawful, or (ii) based on maintaining an
abnormally dangerous condition, with the first
“requiring more evidence of intent (akin to an
intentional tort), the other requiring less (akin to a strict
liability tort).” City of Cincinnati v. Deutsche
Bank Nat'l Tr. Co., 863 F.3d 474, 477-78 (6th Cir.
2017); Kramer, 882 N.E.2d at 52.
qualified nuisance, in contrast, is based on negligent
conduct and requires proof of a breached duty of care, for
which damages are recoverable. City of Cleveland,
621 F.Supp.2d at 521. Plaintiffs do not assert a claim for
qualified public nuisance - they only assert a claim for
absolute public nuisance. Caselaw addressing nuisance claims
may refer to “tort” or “nuisance”
generally, but the applicability of a given case depends on
the specific category of nuisance alleged. Because Plaintiffs
asset only a common-law claim for absolute public nuisance,
only cases discussing that species of nuisance are apposite.
that a four-year statute of limitations applies to common law
nuisance claims, Defendants incorrectly rely on caselaw
pertaining to qualified nuisance claims brought by
private parties seeking damages for negligent conduct. (Doc.
#: 1896-1, at 9 & n.20, 42-43; Doc. #: 2537 at 26 &
n.30; Doc. #: 1874 at 2). These cases are: Brown v.
County Comm'rs, 622 N.E.2d 1153 (Ohio Ct. App. 1993)
(explaining that, where such a nuisance is continuing in
nature, “a nuisance action can be brought for damages
for those injuries incurred within the applicable four-year
period, regardless of when the nuisance began”);
Haas v. Sunset Ramblers Motor Cycle Club, Inc., 726
N.E.2d 613 (Ohio Ct. App. 1999) (concerning private nuisance
claims seeking injunction and damages); Stewart v.
Allen, 2008 WL 918528, at *3 (Ohio Ct. App. Apr. 7,
2008) (affirming dismissal of a private party's nuisance
claim for damages); and Ashtabula River Corp. Grp. II v.
Conrail, Inc., 549 F.Supp.2d 981, 987-988 (N.D. Ohio
2008) (concluding a common law public nuisance claim was
based on damages due to negligence, and ruling the plaintiff
lacked standing to pursue a statutory nuisance claim that did
not seek equitable relief or sue in the name of the state).
the plaintiffs in the above-cited cases, Plaintiff Counties
plead absolute (not qualified) public nuisance based
on intentional conduct, and seek equitable relief only. (Doc.
#: 2212-1 at 1 & n.2). As such, longstanding precedent
makes clear there is no limitations period applicable to
these claims. “A well-settled rule in Ohio is that
no length of time can legalize a public nuisance and that
therefore the statute of limitations does not run against an
action to abate such a nuisance.” 72 Ohio Jur. 3d
Nuisances § 22; see Lake Shore & M.S.R. Co. v.
Hendricks, 40 N.E. 408 (Ohio 1895); Lawrence R. Co.
v. Commissioners of Mahoning County, 1878 WL 75 (Ohio
1878); Little Miami R. Co. v. Commissioners of Greene
County, 1877 WL 31 (Ohio 1877); Cleveland & P.
Ry. Co. v. City of Cleveland, 1910 WL 688 (Ohio Cir. Ct.
1910), aff'd, 102 N.E. 1122 (Ohio 1912).
attack Plaintiffs' argument, seeking to distinguish the
cases upon which Plaintiffs rely by noting they date back a
century or more and arise in the context of encroachments on
public highways or public property. (Doc. #: 1896-1 at 42-43;
Doc. #: 2537 at 26 & nn.30-31). But Defendants cite no
authority overruling this precedent. Neither do they offer
any authority supporting the proposition that equitable
public nuisance actions, like those brought by Plaintiffs,
are subject to a four-year, or any other, limitations period.
The decisions on which Plaintiffs rely stand for the broad
proposition that a governmental entity may maintain a suit to
abate a public nuisance that interferes with a public right
no matter how long the public nuisance has
continued.Although public nuisance law is frequently
applied to claims concerning property rights, Ohio law does
not limit public nuisance law to that context. See
Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136,
1142 (Ohio 2002) (stating “there need not be injury to
real property in order for there to be a public
nuisance” and concluding that, “under the
Restatement's broad definition, a public-nuisance action
can be maintained for injuries caused by a product if the
facts establish that the design, manufacturing, marketing, or
sale of the product unreasonably interferes with a right
common to the general public.”). Accordingly, the
Court finds there is no period of limitations applicable to
Plaintiffs' claims of common law absolute public
Ohio statutory nuisance.
parties do not analyze the statute of limitations applicable
to Plaintiffs' statutory public nuisance claims.
Nevertheless, the Court will undertake the analysis.
Plaintiffs' claim arises under two sections of Ohio Rev.
Code (“O.R.C.”), neither of which specifies a
first statutory provision upon which Plaintiffs rely, §
3767.03 (Abatement of a Nuisance) states: “Whenever a
nuisance exists, ” the persons authorized thereunder
“may bring an action in equity . . . to abate the
nuisance and to perpetually enjoin the person maintaining the
nuisance from further maintaining it.”
“Whenever” means “at any or every time
that.” Merriam-Webster Dictionary (11th ed.
second statutory provision, O.R.C. § 4729.35 (Violations
Deemed Public Nuisance), declares that a person who violates
any law “controlling the distribution of a drug of
abuse” has acted in a way that is “inimical,
harmful, and adverse to the public welfare of the citizens of
Ohio, ” and this “constitute[s] a public
nuisance.” The statute authorizes the State Attorney
General or Ohio counties (by their county prosecutors) to
maintain an action to enjoin any person violating those
rules, and does not limit the time to do so. Id.
Because absolute public nuisance claims and claims under
O.R.C. § 3767.03 are not subject to limitations periods,
the Court construes O.R.C. § 4729.35 as similarly free
of any governing statute of limitations.
Ohio Corrupt Practices Act.
assert that claims under the Ohio Corrupt Practices Act
(“OCPA”) are governed by a five-year limitations
period, beginning when the cause of action first accrues,
pursuant to O.R.C. § 2923.34(J). (Doc. #: 1896-1 at 5).
But the same statute also provides two exceptions. First, an
OCPA claim also “may be commenced at any time within
five years after the unlawful conduct terminates.”
Id. And second, if the State itself brings an OCPA
lawsuit, then the limitations period for a separate civil
action based on the same matters is “suspended”
pending the State's action, and for two years following
its termination. Id.; see also Iron Workers
Local Union No. 17 Ins. Fund v. Philip Morris Inc., 29
F.Supp.2d 801, 809 (N.D. Ohio 1998) (OCPA “allows an
action within five years of the latest of three
insist a simple five-year limitations period applies, but
this is incorrect. The first exception applies in this case,
as Defendants do not even assert the complained-of conduct
ceased more than five years prior to the filing dates of the
Counties' Complaints. The second exception also applies,
as Plaintiffs' limitations period is suspended for two
years following termination of the similar pending action
filed by the State of Ohio, State of Ohio ex rel. Yost v.
Purdue Pharma L.P. et al., Case No. CV-17 CI 000261
(Ross County Ct. C.P.). In this case, the Ohio Attorney
General alleges, as do Plaintiff Counties here, that certain
Defendants operated an opioid marketing enterprise in
violation of the OCPA. (Doc. #: 2212-1 at 22 and referenced
exhibits). Accordingly, Defendants are not entitled
to summary judgment on Plaintiffs' OCPA claim on
provides for civil actions . . . by which ‘[a]ny person
injured in his business or property” by a RICO
violation may seek treble damages and attorney's
fees.' 18 U.S.C. § 1964(c).” Rotella v.
Wood, 528 U.S. 549, 552 (2000). A four-year statute of
limitations governs RICO civil claims for damages. Agency
Holding Corp. v. Malley-Duff & Associates, Inc., 483
U.S. 143, 156, (1987). Specifically, noting the absence of
any limitations provision in the RICO Act itself, Agency
Holding established the four-year statute for RICO civil
claims for damages by “borrowing” the four-year
period governing damages claims under the Clayton Act.
See Agency Holding, 483 U.S. at 146-155.
do not dispute that their RICO damages claims are
subject to the four-year statute of limitations. Rather, they
argue their claims for equitable relief under RICO
are not subject to any statute of limitations, because the
Clayton Act's equitable relief provision exempts such
claims from any limitations. See Areeda and
Hovenkamp, Antitrust Law, at ¶ 320 (4th ed. 2014)
(“The §4B [of the Clayton Act] limitation period
applies only to damage actions. Equity actions, private or
governmental, are not restricted by the statute of
limitation.”). (Doc. #: 2212-1 at 23).
refute Plaintiffs' position, Defendants cite dicta from a
Sixth Circuit decision finding persuasive the proposition
that RICO does not provide private litigants an equitable
remedy in the first place, so the Court must simply apply the
four-year limitations period applicable to Plaintiffs'
claims for damages; no further analysis is
needed. See Ganey v. Raffone, 91 F.3d
143, 1996 WL 382278, at *4 n.6 (6th Cir. 1996) (discussing
Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076
(9th Cir. 1986)) (“[Wollersheim] held
‘that injunctive relief is not available to a private
plaintiff in a civil RICO action.' * * * Although we find
the Wollersheim analysis persuasive, because this
matter can be disposed of by other means, we do not rule on
whether injunctive relief is available” under
RICO). (Doc. #: 2537 at 27-28).
Court concludes Defendants' argument that equitable
relief is unavailable under RICO is not well-taken. Neither
the Supreme Court nor the Sixth Circuit has squarely
addressed whether RICO provides an equitable remedy to
private plaintiffs, and there is a Circuit split on the
question. See, e.g., Jackson v. Rohm & Haas Co.,
2009 WL 948741, at *2 (E.D. Pa. Mar. 20, 2009) (collecting
cases with differing conclusions), aff'd, 366
Fed.Appx. 342 (3rd Cir. 2010). Unlike the very brief dicta in
Ganey, more recent Circuit cases undertaking deeper
analysis conclude RICO does provide equitable relief. See
Chevron Corp. v. Donziger, 833 F.3d 74, 137 (2nd Cir.
2016) (joining the Seventh Circuit in concluding that federal
courts are authorized to grant equitable relief to a private
plaintiff establishing injury under Section 1962);
National Organization for Women, Inc. v. Scheidler,
267 F.3d 687, 695 (7th Cir. 2001), reversed on other
grounds, 537 U.S. 393 (2003). The question of what
limitations period applies to a RICO claim for equitable
relief, therefore, is not moot.
Agency Holding court held that the Clayton Act is
more closely analogous to RICO than any state law, therefore
its four-year statute of limitations governing claims by
private parties seeking damages is most appropriate
for RICO actions. See 483 U.S. at 146-155.
Defendants rely on Agency Holding's reasoning
that, where federal statutes do not provide express statutes
of limitations, “we do not ordinarily assume that
Congress intended that there be no limit on actions at all;
rather, our task is to ‘borrow' the most suitable
statute or other rule of timeliness from some other
source.” Id. at 146 (internal quotation marks
and citations omitted).
Holding, however, did not address whether equitable
claims could be brought under RICO in the first place or, if
so, whether the Clayton Act's express exemption of
injunctive claims from a limitations period would govern such
claims. Defendants note the Agency Holding decision
said nothing about borrowing the Clayton Act's rule
exempting equitable claims from limitations periods.
Defendants reason, “had Congress wanted to provide such
an exemption, it would have said so.” (Doc. #: 2526 at
28). This argument ignores that, had Congress wanted to
include any statute of limitations in RICO, it could
have done so, thereby obviating the need for the borrowing
exercise undertaken by the Agency Holding court.
also contend that, because Plaintiffs' RICO claims seek
both damages and equitable relief based on the same facts,
the claims are governed by a general rule that the statute of
limitations should apply to both types of remedy. See
Nemkov v. O'Hare Chicago Corp.,592 F.2d 351, 355
(7th Cir. 1979); Cope v. Anderson,331 U.S. 461, 464
(1947). (Doc. #: 2637 at 28-29). But Defendants cite no
caselaw applying that general rule to a RICO case. Further,
the cases Defendants cite predate Agency Holdings
and apply state law statutes of limitations to federal
statutory claims that lack their own ‒ ...