Baltimore’s lawsuit against opioid manufacturers and distributors will proceed to a trial next month after a city judge on Thursday denied motions from the companies to throw out the case.
The decision is a pivotal one for the city’s lawsuit, which claims drugmakers and distributors flooded Baltimore with millions of legal opioid prescriptions while they downplayed their products’ addictiveness, targeted doctors with aggressive marketing and failed to block suspiciously large orders of painkillers.
Baltimore City Circuit Judge Lawrence Fletcher-Hill denied the companies’ motions for summary judgment, ruling that a jury will decide the outcome of the case. Trial is set to begin Sept. 16.
“We are pleased that the court recognized the amount of evidence that we have put forth in support of our public nuisance case against these bad actors in the opioid industry, and look forward to sharing our full case with a Baltimore city jury next month,” the city’s Law Department said in a statement. “We remain, as always, committed to ensuring that the defendants are held responsible for their actions in creating and furthering the opioids crisis in Baltimore.”
Baltimore is seeking more than $11 billion in damages to help the city implement an opioid abatement plan that includes drug treatment, overdose prevention and other services. Jurors will decide what damages the companies must pay, but Fletcher-Hill will hold a separate bench trial afterward to assess how much each of the defendants should pay, if they are found liable, toward an opioid abatement plan.
The city previously declined to participate in a massive global settlement with several major opioid companies that the state of Maryland and most local jurisdictions joined two years ago, choosing instead to go it alone in hopes of winning more money.
Now the city’s lawsuit against Johnson & Johnson, McKesson, Cardinal Health, AmerisourceBergen (now called Cencora), Teva Pharmaceuticals and Walgreens can proceed to a trial, though Thursday’s rulings could also induce the companies to try to settle the case.
Last week, Baltimore announced that it had settled with CVS, one of the defendants in the lawsuit, for $45 million. The city also previously settled with another company, Allergan, for the same amount. Both companies were relatively small contributors to the glut of opioid pills that bombarded the Baltimore area. Other companies still in the lawsuit were responsible for more than 80% of the opioids sent to Baltimore pharmacies, the city has said.
The lawsuit centers on a public nuisance claim, or the argument that drug companies interfered with public health by distributing opioids so widely.
The companies had warned that their products posed a risk but marketed and distributed them without concern for how many addictive painkillers were being sent across the nation, the city claims. Now facing an overdose crisis linked to illicit drugs like fentanyl, the city claims that the oversupply of legal pills introduced opioids to a new generation of users who eventually turned to cheaper, more deadly street drugs.
The drug companies argued their actions were too distant from the harms that have occurred in Baltimore, which had a well-known heroin problem before the prescription opioid epidemic. The companies asked Fletcher-Hill to toss the case, arguing that the city failed to identify specific orders of opioids that were diverted for illicit use.
Fletcher-Hill largely rejected those requests, though he agreed to dismiss the city’s negligence claims against the companies. The case will proceed only on the public nuisance claim.
“As a matter of law, the city has alleged interference with public rights that relate to both the public health and the public safety of residents of Baltimore city,” the judge said.
“This is quintessentially a case where a jury can assess … how the defendants have contributed, if they have at all, to that public nuisance and in what degree.”
Fletcher-Hill said he was skeptical of some of the city’s arguments, however, including using a public nuisance claim to resolve a massive problem like the opioid crisis.
“This court has serious reservations about the use of public nuisance claims to address social problems of this breadth and complexity,” Fletcher-Hill said.
The case is likely to end up before the Maryland Supreme Court eventually, he said.
Fletcher-Hill could still throw out claims at trial if he finds the city did not present enough evidence. For example, he said it is not clear that opioid manufacturers had a duty to identify and halt potentially suspicious orders of painkillers, since they are the first link in a supply chain that includes opioid distributors, pharmacies, doctors and patients. The responsibility for monitoring suspicious orders fell mostly to distributors, the judge said.
“I will be vigilant at trial and ready to grant a motion for judgment if the city fails to provide the kind of evidence … that there is a duty of that sort placed on manufacturers,” Fletcher-Hill said. The city also claims opioid manufacturers improperly marketed their drugs and downplayed the risk of addiction to increase the demand for painkillers.
Fletcher-Hill also ruled the opioid companies cannot use “contributory negligence,” or the idea that the plaintiff in a lawsuit contributed to the harms they experienced, as a defense against the city’s claims.
Cardinal Health and Walgreens declined to comment on the ruling. Other companies named in the lawsuit did not immediately respond to requests for comment.
