The outcome of opioid litigation in Orange County Superior Court could set a precedent in how public nuisance laws are applied, according to a toxic tort attorney.
“You've got counties wanting to show that they will exert their muscle under novel legal theories, such as public nuisance, in order to recoup some of the societal costs from the uses of these drugs,” said Colleen O’Brien, a toxic tort and civil litigation attorney at Scali Rasmussen law firm. “It will have some impact on the litigation in different places but it's one data point. This is one single battle in a much longer war."
As previously reported, the counties of Santa Clara, Orange, Los Angeles, and the City of Oakland sued multiple pharmaceutical companies in 2014 alleging they caused a public nuisance with opioid marketing that resulted in a crisis of addiction, abuse, and overdose deaths in those communities.
“These harms in California, including in Santa Clara, Orange, and Los Angeles counties, and the City of Oakland caused by Defendants’ deceptive marketing schemes and unlawful and unfair business practices are a public nuisance because they are 'injurious to health' and interfere 'with the comfortable enjoyment of life and property' and because they 'affect at the same time entire communit[ies]' and 'neighborhoods' and 'any considerable number of persons,'” the plaintiff’s Sixth Amended Complaint states.
But during closing arguments last month, Reuters reported that the presiding Judge Peter Wilson questioned what evidence presented by the plaintiff counties would support a decision that held pharmaceutical companies responsible for the opioid crisis.
“It's never a great question to get from a judge,” O’Brien told the Southern California Record. “You prefer not to hear that kind of question. You want to be able to answer it because if the judge has that concern, you want him to have your response very much in mind when he's writing. The counties are probably looking right now at what their options are for cases beyond this one and appeals of rulings from this case if possible.”
Defendants named in the litigation include Purdue Pharma, Teva Pharmaceuticals, Cephalon, Johnson & Johnson, Janssen Pharmaceuticals, Ortho-McNeil Janssen Pharmaceuticals, Endo Health Solutions, Endo Pharmaceuticals, Actavis, and Watson Pharmaceuticals.
If the counties do not prevail, they are likely to consider what strategies worked and what strategies did not work and start over with other legal theories, other expert evidence, and different discovery, according to O’Brien.
“I don't think it's the end of the line,” she said. “There are a lot of counties in California. A lot of cities and counties may have been waiting to see how this suit played out in order to develop their own strategy. So, it’s not over in the grander sense.”