Baby Doe lawsuit: Judge dismisses Tri-Cities counties, cities from drug company complaint

Zach Vance • Aug 7, 2018 at 11:30 PM

BRISTOL — Sullivan County Chancellor E.G. Moody was not buying the claim, made by opioid manufacturers, that Northeast Tennessee counties and cities are to blame for the scourge of opioid addiction ravaging the region.

After four-plus hours of arguments inside the Bristol Justice Center Tuesday, Moody ruled on a series of motions in favor of the Northeast Tennessee district attorney plaintiffs, who are suing Endo Pharmaceutical, Mallinckrodt, Purdue Pharma, a Kingsport pain clinic and two accused drug dealers over alleged roles in creating the opioid epidemic.

“We’re very happy with the results. We feel the court did a good job, (Moody) took his time, listened to all the parties’ arguments, as you heard over 4.5 hours, and we believe the court got the issues correct,” said Nashville-based attorney Gerard Stranch, IV, who is representing the First, Second and Third Judicial district attorneys general in this case.

In June 2017, Stranch filed the civil suit against the opioid manufacturers, claiming the companies downplayed or ignored the risk of opioid addiction while misleading the public through a fraudulent marketing campaign.

The suit was also brought on behalf of a “Baby Doe,” who was born in March 2015 addicted to opioids due to her mother’s addiction. Baby Doe is a representation of the hundreds of babies born each year addicted to painkillers in the Tri-Cities.

Last month, the opioid manufacturers’ attorneys filed their own 53-page third-party complaint in Kingsport Circuit Court that cast blame on the cities and counties of Northeast Tennessee for its failure to prevent the illegal diversion of prescription opioids on the black market.  

“The absurdity of plaintiffs' (erroneous) theory is evidenced by the fact that if it were accepted, the (cities and counties) themselves could be held liable for ‘enabling and/or failing to prevent' diversion through their failure to effectively oversee prescribing practices, failure to prevent the illegal diversion of prescription opioid medications, and failure to provide appropriate drug prevention and treatment services, among other failures,” according to the complaint, which also named convicted drug dealers, pill mills and online black market distributors as defendants. 

Moody ruled to remove the cities and counties from the drug companies’ third-party complaint for a multitude of reasons, including failure to state a claim and the protections afforded under the Public Duty Doctrine. He did keep the individual “black-market” defendants listed in the third-party complaint, but put the case on hold until the court can revisit at a later date.

The original complaint essentially alleges the drug companies are liable for the region’s opioid problem under Tennessee’s Drug Dealer Liability Act. The drug companies attempted to dismiss the lawsuit in May, arguing the Drug Dealer Liability Act cannot pertain to legal prescription drug manufacturers, but Moody ultimately ruled against the motion for dismissal.

Endo’s outside counsel Sam Jones continued that same argument on Tuesday, calling this case unprecedented since it is the first nationally to apply a state’s drug dealer liability law to a legal drug manufacturer. Jones said South Dakota and Louisiana have similar laws that explicitly exempt the lawful sale of FDA-approved drugs from being liable.

Purdue, Endo and Mallinckrodt’s attorneys attempted to get Moody to certify a motion for an interlocutory appeal, which would allow an appeals court to review the motion to dismiss before the trial concluded, but Moody swiftly denied that motion.

Moody’s courtroom on Tuesday showcased the trifling between the innumerable drug company counsels, each arguing a separate motion, and Stranch.

“I’m not surprised (about the case being stretched out). These companies have a lot of money and they’ve hired very good lawyers. They’re doing everything they can to avoid being hauled in here to court to answer for their wrongdoings,” Stranch said.

“So it’s no surprise that they’ve delayed the case, but their day of reckoning is coming and it will not be much longer before they have to stand before 12 Sullivan County citizens and explain their actions.”

Both parties exchanged blame for delayed, and sometimes ignored, correspondence during the evidence discovery process. The plaintiffs and defendants are scheduled to conduct a conference call Thursday to establish a protocol for exchanging electronically stored information.

Although Endo’s lawyer said he was in the midst of producing the documents, Moody ruled on yet another motion compelling Endo to produce 3.7 million documents related to all its opioids, not just its Opana ER brand, within the next 90 days.

“I believe, based on the court’s ruling today, it’s going to be larger (than 3.7 million),” Stranch said. 

“Because what I heard described as being within those (3.7 million documents) are not all the categories that they were required to produce. So I anticipate we’ll receive more than that. We have plenty of lawyers standing by who will be reviewing those documents, and we’ll be pushing this case as quickly as we can because the counties, cities and DAs desperately need this money to try to combat the opioid crisis.”

Stranch also said his team will soon be conducting the depositions of former Endo employees, current Purdue employees and a Morristown doctor serving 36 months in federal prison for his involvement in dispensing painkillers.

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