throbber
ELECTRONICALLY FILED
`Crittenden County Circuit Court
`
`Terry Hawkins, Circuit Clerk
`2021-Jan-22 13:33:21
`18CV-18-268
`C02D01 : 33 Pages
`
`
`
`
`
`
`
`IN THE CIRCUIT COURT OF CRITTENDEN COUNTY, ARKANSAS
`
`STATE OF ARKANSAS, ex rel. SCOTT EL-
`LINGTON, Second Judicial Circuit Prosecuting
`Attorney, et al.,
`
`
`
`
`
`Plaintiffs,
`
`v.
`
`PURDUE PHARMA, L.P., et al.,
`
`Defendants.
`
`Case No.: 18CV-18-268
`
`
`
`BRIEF IN SUPPORT OF MANUFACTURER DEFENDANTS’ JOINT MOTION TO
`DISMISS PLAINTIFFS’ FOURTH AMENDED COMPLAINT
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`

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`TABLE OF CONTENTS
`
`Page
`
`II.
`
`III.
`
`INTRODUCTION........................................................................................................................ 1
`LEGAL STANDARD .................................................................................................................. 3
`ARGUMENT ................................................................................................................................ 3
`I.
`PLAINTIFFS’ CLAIMS ARE BARRED BY THE
`REMOTENESS DOCTRINE ............................................................................. 3
`THE CAUSAL CHAIN IS TOO TENUOUS TO STATE A
`CLAIM .................................................................................................................. 6
`PLAINTIFFS’ INDIVIDUAL CLAIMS FAIL FOR CLAIM-
`SPECIFIC REASONS ....................................................................................... 10
`The Negligence and Gross Negligence Claims Fail ......................................... 10
`A.
`The Public Nuisance Claim Fails ...................................................................... 14
`B.
`The Uniform Narcotic Drug Act Claims Fail .................................................. 18
`C.
`The Controlled Substances Act Claims Fail .................................................... 21
`D.
`The Drug Dealer Liability Act Claim Fails ..................................................... 22
`E.
`CONCLUSION .......................................................................................................................... 24
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`-i-
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
`
`Ark. Dep’t of Envtl. Quality v. Brighton Corp.,
` 352 Ark. 396, 102 S.W.3d 458 (2003)........................................................................................ 3
`
`Arkansas Carpenters’ Health & Welfare Fund v. Philip Morris, Inc.,
` 75 F. Supp. 2d 936 (E.D. Ark. 1999) ...................................................................................... 1, 5
`
`Ashley Cnty. v. Pfizer, Inc.,
` 552 F.3d 659 (8th Cir. 2009) .............................................................................................. 2, 6, 7
`
`Astra USA, Inc. v. Santa Clara Cty.,
` 563 U.S. 110 (2011) .................................................................................................................. 13
`
`Ballard Grp., Inc. v. BP Lubricants USA, Inc.,
` 2014 Ark. 276, 436 S.W.3d 445 (2014).................................................................................... 20
`
`Biedenharn v. Thicksten,
` 361 Ark. 438, 206 S.W.3d 837 (2005)........................................................................................ 3
`
`Central Okla. Pipeline, Inc. v. Hawk Field Services, LLC,
` 2012 Ark. 157, 400 S.W.3d 701 (2012).................................................................................... 11
`
`City & Cnty. of San Francisco v. Purdue Pharma L.P.,
` No. 3:18-cv-07591-CRB, 2020 WL 5816488 (N.D. Cal. Sept. 30, 2020) ................................. 9
`
`City of Chicago v. Beretta U.S.A. Corp.,
` 821 N.E.2d 1099 (Ill. 2004) ................................................................................................ 15, 16
`
`City of New Haven v. Purdue Pharma L.P.,
` No. X07 HHD CV 17 6086134 S, 2019 WL 423990 (Conn. Super. Ct. Jan. 8, 2019) .............. 9
`
`City of New York v. Smokes-Spirits.Com, Inc.,
` 911 N.E.2d 834 (N.Y. 2009) ....................................................................................................... 4
`
`City of Philadelphia v. Beretta U.S.A. Corp.,
` 277 F.3d 415 (3d Cir. 2002) ....................................................................................................... 4
`
`City of Surprise v. Allergan plc et al.,
` No. CV 2019-003439 (Ariz. Super. Ct. Oct. 29, 2020) ............................................................ 12
`
`Cnty. of Cook v. Philip Morris, Inc.,
` 817 N.E.2d 1039 (Ill. Ct. App. 2004) ......................................................................................... 4
`
`-ii-
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Effler v. Purdue Pharma L.P.,
` No. E2018-01994-SC-R11-CV, 2020 WL 7394301 (Tenn. Dec. 17, 2020) ............................ 24
`
`First Commercial Tr. Co. v. Lorcin Eng’g, Inc.,
` 321 Ark. 210, 900 S.W.2d 202 (1995)...................................................................................... 10
`
`Ford v. State,
` 75 Ark. App. 126, 55 S.W.3d 315 (2001) ........................................................................... 20, 22
`
`Ganim v. Smith & Wesson Corp.,
` 780 A.2d 98 (Conn. 2001) .......................................................................................................... 4
`
`Grewal v. Janssen Pharmaceuticals, Inc.,
` No. C-80-18 (N.J. Super. Ct. Oct. 21, 2019) ............................................................................ 17
`
`Higgins v. Conn. Light & Power Co.,
` 30 A.2d 388 (Conn. 1943) ........................................................................................................ 16
`
`Holmes v. Sec. Inv’r Prot. Corp.,
` 503 U.S. 258 (1992) .................................................................................................................... 3
`
`In re Lead Paint Litig.,
` 924 A.2d 484 (2007) ................................................................................................................. 16
`
`In re Nat’l Prescription Opiate Litig.,
` No. 1:17-md-2804, 2019 WL 3737023 (N.D. Ohio June 13, 2019) ......................................... 12
`
`In re Nat’l Prescription Opiate Litig.,
` No. 1:17-md-2804, 2019 WL 4043938 (N.D. Ohio Aug. 26, 2019) ........................................ 13
`
`Indep. Cnty. v. Pfizer, Inc.,
` 534 F. Supp. 2d 882 (E.D. Ark. 2008) .............................................................................. 1, 3, 14
`
`Lovell v. Brock,
` 330 Ark. 206, 952 S.W.2d 161 (1997).................................................................................... 6, 8
`
`Mangrum v. Pigue,
` 359 Ark. 373, 198 S.W.3d 496 (2004)........................................................................................ 9
`
`Milligan v. General Oil Co.,
` 293 Ark. 401, 738 S.W.2d 404 (1987)...................................................................................... 14
`
`
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`-iii-
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers,
` 414 U.S. 453 (1974) .................................................................................................................. 22
`
`Owens Corning v. R.J. Reynolds Tobacco Co.,
` 868 So. 2d 331 (Miss. 2004) ....................................................................................................... 5
`
`Ozark Poultry Prods., Inc. v. Garman,
` 251 Ark. 389, 472 S.W.2d 714 (1971)...................................................................................... 15
`
`People of the State of Illinois v. Johnson & Johnson et al.,
` No. 19 CH 10481 (Ill. Cir. Ct. Jan. 8, 2021) ............................................................................... 8
`
`Peregrine Trading, LLC v. Rowe,
` 2018 Ark. App. 176, 546 S.W.3d 518 (2018) .......................................................................... 13
`
`Perrodin v. Rooker,
` 322 Ark. 117, 908 S.W.2d 85 (1995).......................................................................................... 3
`
`State ex rel. Jennings v. Purdue Pharma L.P.,
` No. N18C-01-223 MMJ CCLD, 2019 WL 446382 (Del. Super. Ct. Feb. 4, 2019) ................. 17
`
`State ex rel. Nessel v. Cardinal Health, Inc. et al.,
` No. 19-016896-NZ (Mich. Cir. Ct. Nov. 17, 2020) ............................................................ 11, 17
`
`State ex rel. Stenehjem v. Purdue Pharma L.P.,
` No. 08-2018-CV-01300, 2019 WL 2245743 (N.D. Dist. Ct. May 10, 2019) ..................... 2, 7, 9
`
`State v. Lead Indus. Ass’n,
` 951 A.2d 428 (R.I. 2008) .......................................................................................................... 15
`
`Steamfitters Loc. Union No. 420 Welfare Fund v. Philip Morris, Inc.,
` 171 F.3d 912 (3d Cir. 1999) ....................................................................................................... 8
`
`Streambend Properties II, LLC v. Ivy Tower Minneapolis, LLC,
` 781 F.3d 1003 (8th Cir. 2015) .................................................................................................. 20
`
`Tilley v. Malvern Nat’l Bank,
` 2017 Ark. 343, 532 S.W.3d 570 (Ark. 2017) ........................................................................... 19
`
`Transamerica Mortgage Advisors, Inc. v. Lewis,
` 444 U.S. 11 (1979) .................................................................................................................... 22
`
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`-iv-
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`TABLE OF AUTHORITIES
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`Page(s)
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`Varner v. Peterson Farms,
` 371 F.3d 1011 (8th Cir. 2004) .................................................................................................. 20
`
`Wilson v. Evans,
` 284 Ark. 101, 679 S.W.2d 205 (1984)........................................................................................ 6
`
`Young v. Blytheville Sch. Dist.,
` 2013 Ark. App. 50, 425 S.W.3d 865 (2013) ............................................................................. 12
`
`STATUTES
`
`Ark. Code Ann. § 5-64-305 .......................................................................................................... 13
`
`Ark. Code Ann. § 16-124-103 ...................................................................................................... 23
`
`Ark. Code Ann. § 16-124-104 ...................................................................................................... 23
`
`Ark. Code Ann. § 16-118-107(a)(1) ....................................................................................... 18, 19
`
`Ark. Code Ann. § 16-118-107(b) .................................................................................................. 19
`
`Ark. Code Ann. § 20-64-202 ........................................................................................................ 19
`
`Ark. Code Ann. § 20-64-219 ........................................................................................................ 13
`
`TREATISES
`
`Restatement (Third) of Torts: Liab. For Econ. Harm § 8, cmt. g (2020) .................................... 16
`
`REGULATIONS
`
`Ark. Admin. Code § 007.07.2-I-II ................................................................................................ 12
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`-v-
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`
`
`INTRODUCTION
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`75 counties and 16 cities, along with a local prosecuting attorney bringing claims on behalf
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`of the entire State of Arkansas, seek to hold manufacturers of certain FDA-approved prescription
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`opioid medications (the undersigned “Manufacturer Defendants”), along with certain distributors,
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`pharmacies, and medical providers, liable for the entire spectrum of alleged future public costs
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`arising from misuse and abuse of opioids by Arkansas residents. In the operative Fourth Amended
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`Complaint, Plaintiffs abandon all of their claims for compensatory damages and now seek to re-
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`cover the alleged future costs of “abat[ing] the Arkansas opioid epidemic.” Fourth Am. Compl.
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`¶ 18. According to Plaintiffs, the Manufacturer Defendants are liable for all of these future costs
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`because they allegedly misrepresented the risks of opioid medications to third-party doctors and
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`patients, and failed to unilaterally cease shipments to DEA-registered distributors that were later
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`shipped to pharmacies in Arkansas and subsequently diverted and abused by third parties. Plain-
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`tiffs’ claims continue to fail as a matter of law, and no amount of discovery will change that.
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`First, the Fourth Amended Complaint fails in its entirety under the longstanding remote-
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`ness doctrine. Under Arkansas law, “a plaintiff who complain[s] of harm flowing merely from the
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`misfortunes visited upon a third person by the defendant’s acts [is] generally said to stand at too
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`remote a distance to recover.” Arkansas Carpenters’ Health & Welfare Fund v. Philip Morris,
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`Inc., 75 F. Supp. 2d 936, 942 (E.D. Ark. 1999) (citation omitted); see Indep. Cty. v. Pfizer, Inc.,
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`534 F. Supp. 2d 882, 888 (E.D. Ark. 2008) (“Arkansas law recognizes the remoteness doctrine
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`. . . .”). Here, Plaintiffs seek monetary relief for future “expenses in providing public services” to
`
`address their residents’ opioid-related conditions, including “medical” and “addiction treatment
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`costs.” Fourth Am. Compl. ¶¶ 356-57. Such purported costs fall squarely within the bar of the
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`remoteness doctrine because they flow “merely from the misfortunes visited upon” residents in the
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`form of alleged opioid-related conditions. Courts across the country have dismissed similar
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`lawsuits by cities and counties alleging harm to themselves that derives from injuries to their res-
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`idents. This Court should do the same.
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`Second, the alleged causal chain connecting the Manufacturer Defendants’ purported
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`wrongdoing to Plaintiffs’ alleged harm is too attenuated to state a claim. The Eighth Circuit has
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`already applied Arkansas proximate cause principles to dismiss analogous claims with fewer
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`causal links. See Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 670-71 (8th Cir. 2009). There, twenty
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`Arkansas counties sued makers of cold medicine to recover public expenditures stemming from
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`the methamphetamine epidemic. Declining to “open Pandora’s box” by “stretch[ing]” liability
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`that far, the Eighth Circuit unanimously held that proximate cause was “an appropriate avenue for
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`limiting liability in this context” and affirmed dismissal of the case on the pleadings. Id. at 671-
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`72. The same outcome is warranted here. Indeed, other courts have dismissed opioid-related
`
`claims on proximate cause grounds and described Ashley County as both “instructive” and “de-
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`cided under analogous facts.” State ex rel. Stenehjem v. Purdue Pharma L.P., No. 08-2018-CV-
`
`01300, 2019 WL 2245743, at *10 (N.D. Dist. Ct. May 10, 2019).
`
`Finally, beyond these threshold defects, all of Plaintiffs’ individual counts suffer from
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`claim-specific deficiencies. Plaintiffs seek to expand the settled boundaries of Arkansas public
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`nuisance law in ways that, if accepted, would open the floodgates to countless tort actions against
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`product manufacturers for tenuous harms flowing from misuse of lawful products by third parties.
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`Courts facing similar opioid-related public nuisance claims brought by states have repeatedly dis-
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`missed them on the pleadings—including indistinguishable claims brought by the states of Dela-
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`ware, North Dakota, Illinois, New Jersey, Michigan, and South Dakota. As for the remaining
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`counts, each fails for facial deficiencies that mandate dismissal on the pleadings. The Court should
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`dismiss the Fourth Amended Complaint in its entirety.
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`LEGAL STANDARD
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`Under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure, “[a] pleading is subject to
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`dismissal if it fails to state facts upon which relief can be granted.” Perrodin v. Rooker, 322 Ark.
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`117, 120, 908 S.W.2d 85, 87 (1995). Arkansas is a “fact pleading” jurisdiction, and Plaintiffs must
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`therefore allege “facts,” “not mere conclusions,” to state a claim. Biedenharn v. Thicksten, 361
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`Ark. 438, 441, 206 S.W.3d 837, 389 (2005). Arkansas has “specifically and deliberately” rejected
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`the “notice pleading” standard used in federal court. Ark. Dep’t of Envtl. Quality v. Brighton
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`Corp., 352 Ark. 396, 403, 102 S.W.3d 458, 463 (2003).
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`ARGUMENT
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`I.
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`PLAINTIFFS’ CLAIMS ARE BARRED BY THE REMOTENESS DOCTRINE
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`“Arkansas law recognizes the remoteness doctrine,” Indep. Cnty. v. Pfizer, Inc., 534 F.
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`Supp. 2d 882, 888 (E.D. Ark. 2008), aff’d sub nom. Ashley Cnty., 552 F.3d 659, the common law
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`principle that “a plaintiff who complain[s] of harm flowing merely from the misfortunes visited
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`upon a third person by the defendant’s acts [is] generally said to stand at too remote a distance to
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`recover.” Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268-69 (1992). In Arkansas Carpenters’
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`Health & Welfare Fund v. Philip Morris, Inc., 75 F. Supp. 2d 936 (E.D. Ark. 1999), the plaintiff
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`health care fund claimed that tobacco manufacturers misled fund participants about the risks of
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`smoking, causing them to develop smoking-related illnesses. Plaintiff sought damages for its re-
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`sulting “medical payments.” Id. at 938. In dismissing all of plaintiff’s claims as a matter of law,
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`the court reiterated that “at common law . . . a plaintiff who complained of harm flowing merely
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`from the misfortunes visited upon a third person by the defendant’s acts was generally said to stand
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`at too remote a distance to recover.” Id. at 942 (quoting Holmes, 503 U.S. at 268-69). The court
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`held that the plaintiff failed to surmount that common-law doctrine because its claims were “de-
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`rive[d] . . . from the injuries allegedly occurring to others, i.e., smokers.” Id. at 941. Since the
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`plaintiff would not have incurred any additional expenses “without any injury to smokers,” the
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`court concluded that there was “no direct link between the alleged misconduct and the damages of
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`which the plaintiff complains.” Id. “The plaintiff, in other words, [was] too far removed from the
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`challenged harmful conduct to succeed on any of the several claims.” Id.
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`Appellate courts across the country have applied the same principles—at the pleading
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`stage—to bar lawsuits brought by cities and counties alleging harm to themselves that derives from
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`injuries to their residents. This includes lawsuits brought by municipalities “seeking damages from
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`[tobacco companies] for the cost of health care for tobacco consumers,” Cnty. of Cook v. Philip
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`Morris, Inc., 817 N.E.2d 1039, 1041 (Ill. Ct. App. 2004), lawsuits against gun manufacturers seek-
`
`ing municipal “costs associated with preventing and responding to incidents of handgun violence
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`and crime,” City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 419 (3d Cir. 2002), law-
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`suits alleging that gun manufacturers “fueled the illegal [gun] market” and “crime in” the plaintiff
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`city, Ganim v. Smith & Wesson Corp., 780 A.2d 98, 109 (Conn. 2001), and lawsuits against Inter-
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`net sellers who allegedly failed to collect taxes incurred by individual purchasers, City of New York
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`v. Smokes-Spirits.Com, Inc., 911 N.E.2d 834, 838 (N.Y. 2009). In these cases, and many others,
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`the courts dismissed the lawsuit on the pleadings under the remoteness doctrine. Cnty. of Cook,
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`817 N.E.2d at 1048 (“[G]iven the derivative nature of the injuries alleged in the . . . complaint, it
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`was correctly dismissed on the basis of the remoteness doctrine.”); see City of Philadelphia, 277
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`F.3d at 425 (“[P]laintiffs seek reimbursement for expenses that arise only because of the use of
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`firearms to injure or threaten City residents.”); Ganim, 780 A.2d at 124 (“[T]he harms suffered by
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`the [city] are derivative of those suffered by the various actors in between the [gun manufacturers]
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`and the [city].”); City of New York, 911 N.E.2d at 838 (“[The City’s] claimed injury, in the form
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`-4-
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`of lost tax revenue, is entirely derivative of injuries that it alleges were suffered by misled con-
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`sumers who purchased defendants’ cigarettes over the Internet.”).
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`Plaintiffs’ lawsuit here is likewise barred by the remoteness doctrine. Plaintiffs’ alleged
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`harm derives from, and would not exist without, their residents’ alleged opioid-related conditions.
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`See Becker v. Cardinal Health, Inc., Case No. 19CV001242, slip. op. at 3 (Ohio Ct. of Common
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`Pleas Aug. 28, 2020) (attached hereto as Exhibit A) (“Plaintiffs’ claims fail as a matter of law
`
`because they are wholly derivative of the personal injuries of individual opioid users.”). Plaintiffs
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`allege that the “Manufacturer Defendants’ deceptive marketing scheme” caused unidentified Ar-
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`kansas doctors to “overprescribe” opioid medications, which purportedly caused an increase in
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`“[p]rescription opioid misuse, abuse, and overdose” among unidentified Arkansas residents.
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`Fourth Am. Compl. ¶¶ 245, 256. Plaintiffs contend that their residents’ alleged opioid-related
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`conditions will impose future costs on Plaintiffs through “increased demand on community ser-
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`vices such as hospitals, courts, child services, treatment centers, and law enforcement.” Id. ¶ 256.
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`Plaintiffs thus “complain[] of harm flowing merely from the misfortunes visited upon” their resi-
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`dents in the form of alleged opioid-related conditions. Arkansas Carpenters’ Health & Welfare
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`Fund, 75 F. Supp. 2d at 942 (quoting Holmes, 503 U.S. at 268-69). Put differently, Plaintiffs
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`“would not be here today” seeking these costs “if there had been no [opioid-related] injur[ies] to”
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`their residents. Owens Corning v. R.J. Reynolds Tobacco Co., 868 So. 2d 331, 338 (Miss. 2004)
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`(holding remoteness doctrine barred suit). Under Arkansas law, therefore, Plaintiffs’ claims fail
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`as a matter of law.
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`-5-
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`II.
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`THE CAUSAL CHAIN IS TOO TENUOUS TO STATE A CLAIM
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`All of Plaintiffs’ claims require a cognizable theory of causation.1 On the face of the Fourth
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`Amended Complaint, Plaintiffs fail to plead one.
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`Under controlling precedent, “[p]roximate cause is defined in terms of direct causation.”
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`Wilson v. Evans, 284 Ark. 101, 101-02, 679 S.W.2d 205, 206 (1984) (citation omitted). That is,
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`the defendant’s alleged conduct must be the “immediate and direct cause of” the plaintiff’s alleged
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`injury. Lovell v. Brock, 330 Ark. 206, 216, 952 S.W.2d 161, 166 (1997). Conduct that fails to
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`satisfy this standard is “too remote or indirect to be considered the legal cause of a subsequent
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`injury.” Ashley Cnty., 552 F.3d at 667 (explaining that “Arkansas common law incorporates the
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`doctrine of intervening acts, which reflects the limits that society places on a defendant’s liability
`
`for his actions”). “Arkansas courts have dismissed actions on the pleadings based on a lack of
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`proximate cause where the facts fail to meet the legal causation standard.” Id. at 668.
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`Ashley County is particularly instructive. There, twenty Arkansas counties brought suit
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`against cold medicine manufacturers seeking “costs expended . . . in dealing with the societal
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`effects of the methamphetamine epidemic in Arkansas.” Id. at 663. The counties alleged that the
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`manufacturers “marketed and sold their products in Arkansas knowing that the products were
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`being used illegally to manufacture methamphetamine,” id., and that the manufacturers “knew they
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`were selling far more [of their products] than the legitimate market for their products consumed,”
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`id. at 664.
`
`Applying Arkansas law, the Eighth Circuit affirmed the dismissal of the counties’ claims
`
`on the pleadings for want of proximate cause. The Eighth Circuit explained that “[p]roximate
`
`
`1 See Robinson Nursing & Rehab. Ctr. v. Phillips, 2017 Ark. 162, at 14, 519 S.W.3d 291, 302
`(2017) (negligence); Ashley Cnty., 552 F.3d at 666 (public nuisance); Ark. Code Ann. § 16-118-
`107(a)(1) (Uniform Narcotic Drug Act and Controlled Substances Act); id. § 16-124-104(c) (Drug
`Dealer Liability Act).
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`-6-
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`
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`cause is bottomed on public policy as a limitation on how far society is willing to extend liability
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`for a defendant’s actions,” id. at 671, and emphasized the “long and tortuous” causal chain con-
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`necting the manufacturers’ alleged conduct to the counties’ alleged expenditures, which required
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`multiple intervening events and third-party actors, see id. at 669. The Eighth Circuit concluded
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`that proximate cause was “an appropriate avenue for limiting liability in this context,” warning of
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`“the avalanche of actions that would follow if we found this case to state a cause of action under
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`Arkansas law.” Id. at 671-72. Courts deciding proximate cause questions in opioid-related actions
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`have described Ashley County as both “instructive” and “decided under analogous facts.” State ex
`
`rel. Stenehjem v. Purdue Pharma L.P., No. 08-2018-CV-01300, 2019 WL 2245743, at *10 (N.D.
`
`Dist. Ct. May 10, 2019).
`
`Plaintiffs’ lawsuit should be dismissed under these well-established proximate cause prin-
`
`ciples. Any purported connection between the Manufacturer Defendants’ alleged misleading mar-
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`keting and Plaintiffs’ alleged harm is “too remote or indirect to” state a claim under Arkansas law.
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`Ashley Cnty., 552 F.3d at 667. Plaintiffs’ theory requires at least the following: (1) each Manu-
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`facturer Defendant misleadingly marketed one or more opioid medications; (2) some unidentified
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`doctors heard or saw this marketing, and the marketing—as opposed to independent medical judg-
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`ment—caused those doctors to write prescriptions they would not otherwise have written;
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`(3) Plaintiffs’ residents filled those prescriptions and took medications they would not have other-
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`wise taken for pain management; (4) those prescriptions led to addiction, overdose, or other injury
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`for unidentified Arkansas residents that would not have otherwise occurred; (5) those injuries re-
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`sulted in hospitalization, crime, and other social ills; and (6) Plaintiffs expended public funds as a
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`result. That is hardly the “immediate and direct” relationship between conduct and harm that is
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`required to state a claim under Arkansas law. Lovell, 330 Ark. at 216, 952 S.W.2d at 166.
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`-7-
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`To the extent Plaintiffs allege that the Manufacturer Defendants failed to report suspicious
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`orders of opioid medications, Plaintiffs’ theory is even more specious and requires at least the
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`following links: (1) a Manufacturer Defendant was required to, but did not, report a specific order
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`as suspicious; (2) had that order been reported, it would not have been shipped to its destination;
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`(3) a third-party distributor with an independent obligation to report suspicious orders then shipped
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`the order to a third-party pharmacy or hospital; (4) the third-party pharmacy or hospital, with an
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`independent obligation to fill only medically-appropriate prescriptions, filled a prescription with
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`the allegedly suspicious order; (5) that prescription was then diverted by a third-party criminal
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`actor to the black market; (6) that diverted medication injured the end user and/or resulted in a
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`criminal arrest; and (7) Plaintiffs expended public funds treating the injured person or prosecuting
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`the arrestee.
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`Given “[t]he sheer number of links in the chain of causation that connect the defendants’
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`[alleged wrongdoing] to the [plaintiffs’] increased expenditures,” the chain is “too attenuated” to
`
`state a claim. Steamfitters Loc. Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912,
`
`930, 935 (3d Cir. 1999). Indeed, certain courts have already dismissed similar opioid-related
`
`claims on the pleadings for lack of proximate causation. Earlier this month, a court dismissed an
`
`opioid-related public nuisance claim brought by the State of Illinois on proximate cause grounds,
`
`explaining that “there are too many instrumentalities between” the defendants’ alleged wrongdo-
`
`ing and the plaintiff’s alleged harm. People of the State of Illinois v. Johnson & Johnson et al.,
`
`No. 19 CH 10481, slip op. at 12 (Ill. Cir. Ct. Jan. 8, 2021) (attached hereto as Exhibit B). As the
`
`court explained, “individual pharmacies, doctors, and patients all have to behave poorly to generate
`
`the harms alleged by the State. Therefore, the State has failed to establish proximate cause.” Id.
`
`-8-
`
`

`

`
`
`Another court dismissed an opioid-related federal RICO claim brought by the City and
`
`County of San Francisco for similar reasons. See City & Cnty. of San Francisco v. Purdue Pharma
`
`L.P., No. 3:18-cv-07591-CRB, 2020 WL 5816488, at *26 (N.D. Cal. Sept. 30, 2020). The court
`
`explained that the alleged “causal chain” “involve[d] too many links and depend[ed] on independ-
`
`ent and intervening acts—including criminal conduct—by third and fourth parties.” Id. at *24.
`
`The court dismissed the RICO claim because the allegations “failed to establish a direct relation-
`
`ship between [plaintiffs’] injuries and Defendants’ predicate acts.” Id. at *26.
`
`Similarly, another court dismissed opioid-related claims brought by the State of North Da-
`
`kota on the ground that the State’s theory of causation “depend[ed] on an extremely attenuated,
`
`multi-step, and remote causal chain” between the marketing of prescription opioid medications
`
`and the purported “financial burden on the State of North Dakota.” Stenehjem, 2019 WL 2245743,
`
`at *8, *10. And a Connecticut court dismissed opioid-related claims for similar reasons. City of
`
`New Haven v. Purdue Pharma L.P., No. X07 HHD CV 17 6086134 S, 2019 WL 423990 (Conn.
`
`Super. Ct. Jan. 8, 2019). There, the plaintiff cities “want[ed] money” “to pay for addicts’ social
`
`and medical needs,” “extra emergency-responder expenses, [and] consequences from drug related
`
`crimes, etc.” Id. at *1. Emphasizing the “many links” needed to connect the manufacturers’ al-
`
`leged conduct to the cities’ alleged losses, id. at *3, the court dismissed the lawsuit because the
`
`cities sought “indirect damages that would turn on conjectural analysis of causes and effects.” Id.
`
`at *2. The same is true here, warranting dismissal under Arkansas law. See Mangrum v. Pigue,
`
`359 Ark. 373, 386, 198 S.W.3d 496, 503 (2004) (“Conjecture and speculation, however plausible,
`
`cannot be permitted to supply the place of proof [of proximate causation].”).
`
`-9-
`
`

`

`
`
`III.
`
`PLAINTIFFS’ INDIVIDUAL CLAIMS FAIL FOR CLAIM-SPECIFIC REASONS
`
`A.
`
`The Negligence and Gross Negligence Claims Fail
`
`The negligence claims fail for two independent reasons: (1) Plaintiffs do not plead facts
`
`sufficient to show that the Manufacturer Defendants owed them a duty of care, and (2) the only
`
`relief Plaintiffs seek (equitable abatement) is not available in a negligence action.
`
`To state a claim for negligence, Plaintiffs must allege facts sufficient to show that the
`
`Manufacturer Defendants owed them a duty of care. First Commercial Tr. Co. v. Lorcin Eng’g,
`
`Inc., 321 Ark. 210, 213, 900 S.W.2d 202, 203 (1995). Whether a duty exists is a question of law
`
`appropriate for determination on the pleadings. Id. at 214-15, 900 S.W.2d at 204. Under settled
`
`Arkansas law, “one is ordinarily not liable for the acts of another unless a special relationship
`
`exists.” Id.
`
`Lorcin Engineering is instructive. There, a shooting victim’s estate brought a negligence
`
`claim against the manufacturer of a handgun used by a third party to shoot the decedent, alleging
`
`that the manufacturer “was negligent in promoting its . . . handgun for sale to a market it knew or
`
`should have known included a substantial number of persons who would be prone to misuse the
`
`handgun by injuring and killing others.” Id. at 212, 900 S.W.2d at 203. The Arkansas Supreme
`
`Court affirmed the dismissal of the negligence claim against the handgun manufacturer on the
`
`pleadings because the manufacturer “owed no legal duty” to the shooting victim. Id. at 213, 900
`
`S.W.2d at 203. The high court explained that “one is ordinarily not liable for the acts of another
`
`unless a special relationship exists,” and “no special relationship exist[ed] between” the handgun
`
`manufacturer, on the one hand, and the retailer that sold the gun or the ultimate purchaser, on the
`
`other, emphasizing that the manufacturer “had no control over its retailers or dealers.” Id. at 214-
`
`16, 900 S.W.2d at 204-05.
`
`-10-
`
`

`

`
`
`Lorcin Engineering compels dismissal of Plaintiffs’ negligence claims. Plaintiffs assert
`
`that the Manufacturer Defendants owed a duty to prevent “third-party misconduct” by preventing
`
`“incompetent” and “illegal[]” actors from obtaining opioid medications. Fourth Am. Compl.
`
`¶¶ 348, 352. Put differently, Plaintiffs seek t

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