The motions to dismiss were filed in the U.S. District Court for the Southern District of West Virginia.
In one motion to dismiss, Cardinal Health claims the plaintiffs’ claims fail as a matter of law because they had no authority to enforce the statutes that it invokes and cannot circumvent its lack of enforcement authority by relabeling the alleged statutory violations at issue as common law claims of negligence and public nuisance.
The plaintiffs’ negligence claim is legally deficient on its own terms for failure adequately to allege the basic elements of duty, causation and damages.
The drug companies do not have a duty to protect others from the alleged unlawful misuse by third parties of the lawful, regulated products that they sell, according to the motion.
“Plaintiff cannot establish proximate cause on the part of Cardinal Health because alleged unlawful acts of third parties break the causal chain,” the motion states. “Nor, in any event, can plaintiff recover money damages for the alleged cost of the routine government services it provides in response to the problem of opioid addiction because of the ‘free public services’ doctrine.”
The plaintiffs’ public nuisance claim is legally deficient because the plaintiff fails to identify a public right violated by the sale of lawful regulated products and because the plaintiffs cannot, as with its negligence claim, establish proximate cause, according to the motion.
The plaintiffs in the lawsuits have filed their suits against the drug companies alleging breach of duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into West Virginia.
Because of the motions, Anthony J. Majestro filed a motion asking District Judge David Faber to stay the cases until the defendants have finished filing motions to dismiss. Majestro, along with Paul T. Farrell Jr., represent the Kanawha, Cabell, Fayette, Wayne, Boone and Logan County Commissions.
The defendants have already filed motions to dismiss in three of the six lawsuits Majestro and Farrell filed.
“Plaintiffs expect that similar motions will be filed by other defendants in these three cases and by the defendants in the other cases as the response deadlines come due, the motion to stay states. “Plaintiffs will oppose the motions to dismiss. However, plaintiffs believe that judicial economy will be enhanced if the response dates to the motions are deferred until such time as all motions have been filed.”
This will permit the plaintiffs to file a consolidated response and alleviate the need for the plaintiffs to file, and the court and the defendants to review, duplicative briefing.
Drug wholesalers shipped 780 million hydrocodone and oxycodone pills to West Virginia from 2007 until 2012. During that period, 1,728 people died of overdoses in West Virginia.
In January, a lawsuit filed in 2012 by the attorney general against the drug wholesalers was settled for more than $40 million.