Prescott’s lawsuit against opioid makers, distributors to move forward in Arizona
Prescott’s lawsuit against opioid distributors and manufacturers will move forward in state court, rather than in federal court as pharmaceutical companies named in the lawsuit had wanted.
The Aug. 2 order by U.S. District Court Judge Susan Brnovich is a victory for Prescott’s legal team, but it’s too early to know what the larger implications of the decision might be for the flood of city- and county-level lawsuits against pharmaceutical companies being filed in Arizona, and nationwide, said Barak Orbach, a law professor at the University of Arizona.
Brnovich’s decision means Prescott’s lawsuit will now be heard in Yavapai County Superior Court. If Brnovich had decided otherwise, the Prescott lawsuit might have been removed from state court in Arizona and rolled into a package of thousands of similar lawsuits by cities and towns nationwide now being considered in a federal court in Ohio.
Prescott lawyer: ‘She got it exactly right’
The Prescott lawsuit, one of several filed in the state this year, claims that the city has been “uniquely and disproportionately impacted by the opioid crisis,” and alleges, among other points, that the defendants named in the lawsuit “engaged in an industry-wide effort to downplay the dangerous and deadly potential effects” of opioid misuse.
“This case is about corporate greed,” the Prescott complaint read. “Simply put, each of the Defendants put its desire for profit above the health and well-being of Prescott’s residents. Prescott and its citizens have paid dearly as a result.”
Companies named in the Prescott complaint include major manufacturers and distributors such as Purdue Pharma, Actavis Inc., McKesson Corp., and Cardinal Health, as well as individual members of those companies and local prescribers. One of those prescribers, Dr. Randy Joe Spicer, was sentenced to more than 13 years in prison for sexual misconduct with a minor and his drug prescribing practices.
Jeffrey Reeves is senior partner at Theodora Oringher PC, one of the firms bringing separate lawsuits against opioid companies on behalf of Arizona counties, cities and towns including Prescott, Bullhead City, Surprise, Glendale, Apache County and La Paz County.
“It was really important that Judge Brnovich here in Arizona got the motion and decided to rule on it before it got taken away to Ohio,” Reeves said. “We think she got it exactly right. The defendants will now be discouraged from trying the same games in their other cases now that they’ve seen how the Arizona district court views the removal process.”
In her order, Brnovich wrote that plaintiffs can make tactical decisions in their choice of forum.
Prescott’s choice of forum is state court, where Reeves says the city will get “faster and more effective relief ” from a local judge and jury who understand the societal harms the lawsuit alleges were caused by the overprescription of opioids.
“If this case goes to another state in another part of the country where they don’t even know, frankly, what the city of Prescott is, we don’t believe we have the best shot at justice, and certainly not in a timely fashion,” Reeves said. “There are 2,300 other complaints in the same courtroom,” he added, referencing the cases being considered in Ohio.
‘A jury trial would be catastrophic’
Orbach, the UA law professor, said the complex field of opioid litigation is still in its nascent stages, and Brnovich’s decision should not yet be seen as a bellwether.
Other local lawsuits could still be consolidated in federal court, and even if individual lawsuits remain in state court, they might be settled before reaching a jury, he said.
Pharmaceutical companies will use their significant legal firepower to keep cases from going to trial after weathering years of bad news reports stemming from both the opioid epidemic and the high cost of prescription drugs, Orbach said.
“A jury trial would be catastrophic for the pharmaceutical companies,” Orbach said. “When the public perception is unfavorable, you don’t want to have a jury trial. Some of the jurors would have strong views or experiences with opioids. Not that they consumed it, not that they had any victims in the family, but they have seen and heard bad things statistically speaking.”
Legal experts: ‘This will be big’
Brnovich’s decision comes soon after her husband, Arizona Attorney General Mark Brnovich, filed a lawsuit with the U.S. Supreme Court alleging members of the Sackler family, which owns Purdue Pharma, have transferred billions from the company to keep that money from being paid to victims of the opioid epidemic in lawsuits.
Prescott’s lawsuit also names members of the Sackler family as defendants. According to Orbach, the naming of corporate directors, officers and owners in litigation represents a major shift in legal philosophy that likely will reach beyond lawsuits related to the opioid crisis.
“I think the anger, the public anger against corporate executives, has been going in such a direction that there will be more and more lawsuits like that, and it will have broad implications for corporate America in general beyond the pharmaceutical industry,” Orbach said.
Orbach said executives who have been shielded from litigation by the companies they work for in the past will now be more cautious in their stewardship, which could result in greater corporate responsibility, an effect that deters talented people from taking the reins of big companies, or a shift in corporate culture that is somewhere in between.
“This will be big,” Orbach said. “This is a trend that we are seeing coming.”
“A jury trial would be catastrophic for the pharmaceutical companies. When the public perception is unfavorable, you don’t want to have a jury trial. Some of the jurors would have strong views or experiences with opioids. Not that they consumed it, not that they had any victims in the family, but they have seen and heard bad things statistically speaking.”