CHARLESTON – Cardinal Health has filed a motion for summary judgment or partial summary judgment as to all claims.
At a minimum, summary judgment should be entered for all negligence claims prior to two years before the date of filing suit by each of the six counties, and for all nuisance claims prior to one year before the date of filing suit by each county, according to the motion filed June 13 in the U.S. District Court for the Southern District of West Virginia.
The res judicata doctrine bars these cases, for that doctrine precludes the re-litigation of the same or similar claims by a party in privity with the state where there has been a final adjudication on the merits of the prior claims, the motion states.
“Here, the plaintiff counties — political subdivisions of the state — assert the very same claims made by the state in its 2012 lawsuit, which ended with an order dismissing the lawsuit with prejudice,” the motion states.
Cardinal argues that the statute of limitations bars these cases, as the West Virginia statute of limitations for negligence is two years and for nuisance, one year.
“The counties were on notice of their claims against Cardinal Health no later than June 2012, with the Attorney General sued the company, but they waited five years before bringing this action,” the motion states.
The lawsuits name AmerisourceBergen Drug Co., Cardinal Health Inc., McKesson Corp., H.D. Smith Wholesale Drug Co., CVS, Rite Aid, Wal-Mart, Kroger and Walgreens.
The drug distributors created a public nuisance and a public health and safety hazard, according to the suits.
The commissions claimed the defendants shipped an “endless supply” of pain pills to the counties, all the while earning billions of dollars.
The counties claim the drug distributors failed to report pharmacies that ordered suspicious quantities of prescription pain pills.
The distributors repeatedly and purposefully breached their duties under state and federal law, according to the suits.
Cardinal’s stated it is not a new idea to blame wholesale distributors for the societal ills resulting from abuse of opioid medications — pointing out the attorney general’s 2012 lawsuit.
The six lawsuits were filed by the county commissions for Cabell, Kanawha, Fayette, Wayne, Boone and Logan earlier this year.
The 2012 lawsuit by the state was settled by the major drug distributors for more than $40 million. Cardinal’s part of the settlement was $20 million.
The commissions are represented by Anthony J. Majestro of Powell & Majestro; J. Robert Rogers of the Law Offices of J. Robert Rogers; Warren R. McGraw II of the Warren McGraw Law Firm; Paul T. Farrell J. and Bert Ketchum of Greene Ketchum Farrell Bailey & Tweel; and Stephanie L. Ojeda of Hendrickson & Long.
Cardinal Health is represented by Brian A. Glasser, Steven R. Ruby and Raymond S. Franks II of Bailey & Glasser; Susan M. Robinson of Thomas Combs & Spann; and Enu Mainigi, F. Lane Heard and Steven M. Pyser of Williams & Connolly.
