D.N. X07-HHD-CV17-6086134-S
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`CITY OF NEW HAVEN,
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`
`
`v.
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`PURDUE PHARMA L.P., d/b/a PURDUE
`PHARMA (DELAWARE) LIMITED
`PARTNERSHIP, et al.,
`
`
`SUPERIOR COURT
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`COMPLEX LITIGATION DOCKET
`
`)
`)
`Plaintiff, )
`)
`) AT HARTFORD
`)
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`)
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`)
`)
`)
`Defendants. ) May 14, 2018
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`
`
`MEMORANDUM OF LAW OF
`DEFENDANTS AMERISOURCEBERGEN CORPORATION,
`MCKESSON CORPORATION, AND CARDINAL HEALTH, INC.,
`IN SUPPORT OF CONDITIONAL MOTION TO STRIKE1
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`Pursuant to Practice Book § 10-39(c), Defendants AmerisourceBergen Corporation,
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`McKesson Corporation, and Cardinal Health, Inc. (collectively, “Distributors”),2 hereby submit
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`their Memorandum of Law in Support of their Motion to Strike Counts I, III, V, VII, and VIII
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`contained in City of New Haven’s (“City” or “Plaintiff”) Complaint dated October 25, 2017
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`(“Complaint” or “Compl.”).
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`PRELIMINARY STATEMENT
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`The problem of opioid abuse is real, but the City’s attempt to fix liability on
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`Distributors—who neither manufacture nor provide patients with prescription drugs—is
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`misplaced. Each of the claims asserted against Distributors should therefore be stricken.
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`1 Distributors have moved to dismiss for lack of subject matter jurisdiction, see Dkt. No. 114.00, and respectfully
`submit that the Court should hear and decide that motion before this motion to strike. See Burton v. Connecticut
`Siting Council, 161 Conn. App. 329, 347, 127 A.3d 1066 (2015) (“[O]nce raised, either by a party or by the court
`itself, the question [of subject matter jurisdiction] must be answered before the court may decide the case.”)
`(internal citation and quotation marks omitted) (emphasis in original).
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`2 By submitting this motion, Defendants AmerisourceBergen Corporation and Cardinal Health, Inc., do not
`concede that they are proper parties to this litigation.
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`

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`The City names 14 defendants, but its allegations focus almost exclusively on the 11
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`Manufacturers, which allegedly deceived doctors and the public by marketing opioid
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`medications as non-addictive and effective for treating chronic pain. The Complaint contains no
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`allegations that Distributors misled doctors or the public about opioid medications; indeed, there
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`are no allegations that Distributors communicated with doctors or otherwise marketed the
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`medications. And for good reason: Distributors are wholesalers, whose role in the
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`pharmaceutical distribution chain is limited to filling orders placed by DEA-registered and state-
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`licensed pharmacies. Distributors themselves are DEA-registered and state-licensed, and the
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`drugs they deliver, including prescription opioid medications, are FDA-approved as safe and
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`effective.
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`As wholesale distributors, Distributors do not develop or conduct the clinical trials that
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`test the safety and effectiveness of the medications, nor do they author the warnings issued for
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`the benefit of doctors and patients—manufacturers do those things. Distributors do not have
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`contact with patients and do not know what drugs are prescribed for which patients and for what
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`reason—licensed doctors do that. And Distributors do not fill prescriptions—licensed
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`pharmacies perform that function. In short, Distributors have no control over the manufacturers
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`who develop and market medications, the doctors who decide what medications are medically
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`appropriate for their patients and write prescriptions, the pharmacies who fill the prescriptions, or
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`the patients who use (or misuse) those medications.
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`The City’s sole allegation against Distributors—pled only on “assum[ption]” and
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`“information and belief”—is that they failed to report wholesale pharmacy orders that could be
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`considered “suspicious” under DEA regulations. Compl. ¶ 256. Of the more than 45 pages of
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`“factual allegations” in the Complaint, only five are devoted to Distributors, but nowhere in
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`-2-
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`those five pages is there a single factual allegation about Distributors’ conduct in the City, or
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`anywhere in Connecticut. Although the City alleges that Distributors failed to report and halt
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`shipment of “suspicious” opioid orders, it admits that it does not know how many pills each
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`Distributor shipped to the City or which pharmacy orders, if any, were “suspicious.” Compl. ¶¶
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`252, 256. Nor does the City allege how any Distributor knew that the number of pills shipped by
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`it was greater than the City’s “legitimate medical use,” id. ¶ 268, as determined by the doctors in
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`the City who wrote prescriptions for that number of pills. And while the Complaint alleges that
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`“diversion” was a foreseeable consequence of Distributors’ conduct, id., it fails to connect any
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`wholesale pharmacy order supplied by a Distributor to any instance of diversion or any
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`prescription that was medically inappropriate.
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`All five causes of action—public nuisance, unfair trade practices, fraud, negligence, and
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`unjust enrichment—asserted against Distributors are legally insufficient because the facts as pled
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`fail to meet the threshold legal requirements for these claims to proceed. These causes of action
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`should be stricken for the following reasons:
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`•
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`•
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`•
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`Count I (public nuisance). A public nuisance claim can be maintained only where
`there are allegations of unlawful or unreasonable use of land. The City does not
`allege—nor can it allege—misuse of land by Distributors. The City further fails
`to allege interference “with a right common to the general public,” that
`Distributors exercised “control” over the property that is the source of the
`nuisance, or that Distributors proximately caused the City’s alleged injuries.
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`Count III (violation of the Connecticut Unfair Trade Practices Act, Conn. Gen.
`Stat. §§ 42-110a, et seq. (“CUTPA”)). The CUTPA claim fails because the City
`does not allege—nor can it allege—that it had a business relationship with
`Distributors or that it was in competition with Distributors. The City also cannot
`maintain a CUTPA claim because it has not pled direct injury resulting from
`Distributors’ conduct; instead, the City seeks reimbursement for municipal costs
`for injuries alleged to have been suffered by its third party residents.
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`Count V (common law fraud). The fraud claim is based on an alleged
`nondisclosure (a purported failure to fulfill federal regulatory reporting
`requirements to the DEA). This claim fails because the City does not allege—nor
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`-3-
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`can it allege—that Distributors owed a duty to provide the federal reporting
`information to the City. Further, the only claimed nondisclosure arises from an
`alleged failure to report to a third party—the DEA—not the City; the City has not
`pled a misrepresentation or nondisclosure by Distributors made with the intent to
`deceive the City, or that the City was induced to take action based on a
`misrepresentation or nondisclosure.
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`Count VII (negligence). The City has no factual or legal basis for asserting that
`Distributors owed a duty to the City, or that Distributors proximately caused the
`City’s alleged injuries.
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`Count VIII (unjust enrichment). Unjust Enrichment is designed to prevent a party
`to a transaction from unfairly benefiting at the expense of another. This count
`fails because there was no transaction between the City and Distributors. The
`City has also failed to plead a benefit that was enjoyed by Distributors at the
`direct expense of the City.
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`Finally, the municipal cost recovery doctrine bars all five counts.
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`FACTUAL BACKGROUND
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`•
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`•
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`•
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`The City brought this action against 11 Manufacturers and 3 Distributors of prescription
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`opioids. Distributors are situated differently than Manufacturers because they do not approve,
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`manufacture, prescribe, or dispense the prescription opioids at issue. See Compl. ¶¶ 8-9, 65–67.
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`Instead, Distributors distribute prescription opioids pursuant to regulations imposed by the DEA.
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`See id. Distributors are all registered by the DEA and distribute only prescription medications
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`approved by the FDA. See id. Distributors do not distribute these medications directly to
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`patients, but instead to DEA-registered and state-licensed pharmacies, which by law may
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`dispense the medications only to patients who present prescriptions written by DEA-registered
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`and state-licensed physicians. See id.; 21 U.S.C. § 829. Distributors likewise do not have any
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`contact with, and certainly do not control, the physicians who write the prescriptions or the
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`patients who fill them. This distribution system is commonly referred to as “closed” because
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`every participant (other than the patient) is registered with and regulated by the DEA, and
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`-4-
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`distributors, doctors, and pharmacies are also licensed and regulated by the state of Connecticut.
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`Compl. ¶ 250; 21 U.S.C. §§ 821–31.
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`The City’s allegations against Manufacturers and Distributors are based on different
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`facts. See Compl. ¶¶ 2-6, 7–11. Most notably, the City alleges that Manufacturers engaged in a
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`“campaign” of fraudulent marketing of prescription opioids for treatment of chronic pain. See id.
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`¶¶ 2–6. This purported “campaign” involved Manufacturers “falsely promoting their highly
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`dangerous products for the use of chronic pain and knowingly, recklessly and negligently
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`denying or trivializing the risk of addiction.” Id. ¶ 2. Manufacturers are alleged to have: (i) paid
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`off doctors who are “Key Opinion Leaders” to induce them to give speeches and write articles
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`about the benefits of prescription opioids; (ii)“twist[ed]” scientific literature regarding the safety
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`of prescription opioids; (iii) provided the medical community with false information concerning
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`the treatment of chronic pain with prescription opioids; (iv) used non-branded advertisements to
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`falsely promote relief from pain with no harmful side effects; and (v) provided “front groups”
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`with millions of dollars to disseminate false information regarding addiction to prescription
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`opioids. Id. ¶ 3. The City alleges that as a result of this “campaign,” Manufacturer profits
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`“skyrocketed.” Id. ¶ 6.
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`As to Distributors, by contrast, the City alleges that they “failed to discharge [their]
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`statutory obligation and monitor a closed chain of distribution, and to detect, report, inspect, and
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`halt suspicious orders [to the City] so as to prevent the black market diversion of controlled
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`substances.” Id. ¶ 10. Despite this broad accusation, the City acknowledges that it cannot
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`identify a single “suspicious” order shipped by a Distributor to a pharmacy in the City. See id.
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`¶¶ 251–52. The Complaint is further devoid of specific facts or instances of “black market,” or
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`any other, diversion of prescription opioids in the City.
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`-5-
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`Although the City alleges that, as a result of the conduct of Manufacturers and
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`Distributors, its residents have become increasingly addicted to legal prescription opioids and
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`illegal heroin, id. ¶ 1, the Complaint does not seek damages on behalf of its residents. Id. ¶¶
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`276–85, 303, 312, 324. The City instead seeks reimbursement for alleged municipal
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`expenditures of taxpayer dollars allegedly made to address addiction and addiction-related
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`conduct of its residents. Id. These alleged municipal expenditures include City-funded health
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`insurance and workmen’s compensation programs, drug testing costs, costs to the criminal
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`justice system, “cost of governmental payor programs,” “cost[s] for prescription drugs, including
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`opioids,” expenditures for “health services for the treatment of addiction and overdoses,”
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`“increased law enforcement and fire rescue [costs],” “costs for social services,” and “costs of
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`governmental services intended for children, families, youth and other residents of the City of
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`New Haven.” Id.
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`THE LEGAL STANDARD
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`Practice Book § 10-39 provides in pertinent part: “(a) Whenever any party wishes to
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`contest (1) the legal sufficiency of the allegations of any complaint . . . to state a claim upon
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`which relief can be granted . . . that party may do so by filing a motion to strike the contested
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`pleading or part thereof.” In determining a motion to strike, the Court looks at whether the facts
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`provable in the complaint would support a cause of action. Batte-Holmgren v. Commissioner of
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`Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). “A motion to strike is properly
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`granted if the complaint alleges mere conclusions of law that are unsupported by the facts
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`alleged.” Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003)
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`(internal citation omitted).
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`-6-
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`ARGUMENT
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`I.
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`THE COURT SHOULD STRIKE THE PUBLIC NUISANCE CLAIM.
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`The law of public nuisance in Connecticut limits the claim to (i) interference with public
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`rights (ii) arising out of a defendant’s use of his or her own land (iii) where the defendant
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`controlled the instrumentality of nuisance at the time of injury. The City alleges none of those
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`elements.
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`A.
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`The City Has Not Alleged Unreasonable or Unlawful Use of Land.
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`Connecticut confines public nuisance law to claims connected to land or property. To
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`state a public nuisance claim, a plaintiff must allege the defendant’s “use of the land was
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`unreasonable or unlawful.” Sinotte v. City of Waterbury, 121 Conn. App. 420, 438, 995 A.2d
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`131 (2010).3 Nearly every Connecticut nuisance case (and perhaps all of them) involve an
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`invasion of property rights or environmental interests relating to the use and enjoyment of
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`property: “Typical examples of public nuisances are: pollution, and obstruction of waterways; air
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`and noise pollution; maintenance of a fire or explosion hazard, or other unsafe premises;
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`maintenance of a house of prostitution; obstruction of safe travel on a public highway; and
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`maintenance of a junkyard or dump.” Ganim v. Smith & Wesson Corp., 258 Conn. 313, 369, 780
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`A.2d 98 (2001).4 The Complaint fails to allege this required element. It makes no connection
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`between Distributors’ alleged wrongful conduct—failing to report suspicious pharmacy orders to
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`DEA—and Distributors’ use of their own land or the City’s land.
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`3 All emphases are added unless otherwise indicated.
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`4 The Connecticut statutes that allow the State to abate a public nuisance also require that the nuisance be situated
`on real property. See Conn. Gen. Stat. § 19a-343(a) (“a person creates or maintains a public nuisance if such
`person erects, establishes, maintains, uses, owns or leases any real property or portion of such property for (1)
`any of the purposes enumerated in subdivisions (1) to (6), inclusive, of subsection (c) of this section, or (2) on
`which any of the offenses enumerated in subdivisions (1) to (14), inclusive, of subsection (c) of this section have
`occurred.”).
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`-7-
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`Courts have resisted efforts of creative plaintiffs to stretch the doctrine beyond property
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`or environmental law. See, e.g., Tioga Pub. Sch. Dist. v. U.S. Gypsum Co., 984 F.2d 915 (8th
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`Cir. 1993) (asbestos); Lead Indus., 951 A.2d at 428 (lead paint); City of Chicago, 821 N.E. 2d at
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`1116 (guns). Like those cases, the City’s case is in every respect but one a conventional
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`products liability, personal injury case. It concerns (i) a pharmaceutical product that is (ii)
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`dangerous when misused and (iii) the manufacturers of the product allegedly misled the public
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`and doctors about the dangers through deceptive advertising and other marketing practices. The
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`City’s case also alleges that (iv) this conduct resulted in personal injury—to City residents who
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`became addicted or suffered overdoses. This action, however, is a products liability, personal
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`injury case without the personal injury plaintiff. And, in such circumstances, courts recognize
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`that permitting a nuisance claim would allow plaintiffs to circumvent the nuances and strictures
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`of product liability law. Tioga Pub. Sch. Dist., 984 F.2d at 920 (“Nuisance thus would become a
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`monster that would devour in one gulp the entire law of tort.”); City of Chicago v. Beretta U.S.A.
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`Corp., 821 N.E. 2d 1099, 1116 (Ill. 2004) (rejecting plaintiffs’ attempt “to assert a public
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`nuisance claim when an action for products liability . . . would be more appropriate”); In re Lead
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`Paint Litig., 924 A.2d 484, 505 (N.J. 2007) (refusing to permit plaintiffs “to supplant an ordinary
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`product liability claim with a separate cause of action as to which there are apparently no
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`bounds”); People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91, 96 (N.Y. App. Div.
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`2003) (“All a creative mind would need to do is construct a scenario describing a known or
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`perceived harm of a sort that can somehow be said to relate back to the way a company or an
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`industry makes, markets and/or sells its non-defective, lawful product or service, and a public
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`nuisance claim would be conceived and a lawsuit born.”).
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`-8-
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`The manufacture, approval, wholesale distribution, and retail dispensing of prescription
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`opioids is subject to comprehensive regulation at the federal and state level. The public nuisance
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`doctrine, however, is a blunt instrument.5 Applied in the loose fashion advocated by the City,
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`the doctrine would supplant the calibrated regulatory framework administered and enforced by
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`the FDA, DEA, and authorized state agencies. Courts thus have refused to stretch nuisance law
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`and improperly expand the government’s ability to “regulate by litigation.” See Penelas v. Arms
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`Technology, Inc., 778 So.2d 1042 (Fla. Dist. Ct. App. 2001) (characterizing county’s public
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`nuisance claim as “an attempt to regulate firearms and ammunition through the medium of the
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`judiciary”); Consolidated Rail Corp. v. City of Dover, 450 F. Supp. 966, 972–73 (D. Del. 1978)
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`(rejecting public nuisance claim involving “technical and policy questions which have industry-
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`wide application” and which are “better made on an industry-wide basis in an agency rulemaking
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`process”).6
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`Because the City’s nuisance claim has nothing to do with interference with land use or
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`property rights, the Court should strike it for this reason alone.
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`5 See also Prosser and Keeton on the Law of Torts, § 86, at 618 (“If ‘nuisance’ is to have any meaning at all, it is
`necessary to dismiss a considerable number of cases which have applied the term to matters not connected either
`with land or with any public right, as mere aberration . . . .”).
`
`6 See District of Columbia v. Beretta, U.S.A. Corp., 872 A.2d 633, 650–51 (D.C. 2005) (declining to adopt right of
`action for public nuisance applied to manufacture and sale of guns generally, “where an effect may be a
`proliferation of lawsuits not merely against these defendants but against other types of commercial enterprises
`. . . in order to address a myriad of societal problems”); People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309
`A.D.2d 91, 96 (N.Y. App. Div. 2003) (“[G]iving a green light to a common-law public nuisance cause of action
`today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public
`nuisance, not only against these defendants, but also against a wide and varied array of other commercial and
`manufacturing enterprises and activities”); In re Lead Paint Litig., 924 A.2d at 505 (plaintiffs’ nuisance theory
`would “create an ill-defined claim that would essentially take the place of [existing] enforcement, abatement, and
`public health funding scheme[s]”).
`
`-9-
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`B.
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`The City Has Not Identified a Public Right with Which Distributors
`Interfered.
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`Connecticut, like almost every jurisdiction, requires that a public nuisance claim involve
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`invasion of a public right. That is a defining element of a public nuisance claim, setting it apart
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`from a private nuisance (though both share the requirement of interference with the use or
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`enjoyment of real property). Sinotte, 121 Conn. App. at 438 (“In addition, the plaintiff must
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`prove that the condition or conduct complained of interferes with a right common to the general
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`public.” (internal quotation marks omitted)); Higgins v. Conn. Light & Power Co., 129 Conn.
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`606, 611, 30 A.2d 388 (1943) (“Nuisances are public where they violate public rights and
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`produce a common injury”); Restatement (Second) of Torts § 821B cmt. g (1979) (“A public
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`right is one common to all members of the general public” and “is collective in nature.”).
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`The test “is not the number of persons annoyed, but the possibility of annoyance to the
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`public by the invasion of its rights. A public nuisance is one that injures the citizens generally
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`who may be so circumstanced as to come within its influence.” Boyne v. Glastonbury, 110
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`Conn. App. 591, 606, 955 A.2d 645 (2008). Thus, an obstruction on a public road driven by one
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`person would constitute a public nuisance, but a dangerous condition in a privately-owned arena
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`that might affect thousands in the exercise of their private rights would not. See Stolze v. City of
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`Bridgeport, 2012 WL 695597, at *2–3 (Conn. Super. Ct. Feb. 7, 2012) (plaintiff’s injury at
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`baseball stadium “not analogous to that of citizens using the public park for recreational
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`activities”). Public rights include “such things as the right to use a public park, highway, river or
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`lake,” Shukis v. Bd. of Educ., 122 Conn. App. 555, 587, 1 A.3d 137 (2010), and the “typical”
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`public nuisance action “involves public areas such as thoroughfares, waterways or parks,”
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`Wright v. DB Companies, Inc., 2007 WL 1532315, at *5 (Conn. Super. Ct. May 3, 2007).
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`-10-
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`A private right, on the other hand, is an interest that does not “produce a common injury.”
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`Sinotte, 121 Conn. App. at 439. It includes a person’s right to use and enjoy his own property,
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`Ugrin v. Town of Cheshire, 307 Conn. 364, 374, 54 A.3d 532 (2012), and, tellingly here, it
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`includes “the individual right that everyone has not to be assaulted or defamed or defrauded or
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`negligently injured.” Restatement (Second) of Torts § 821B cmt. g (1979). But it is just such an
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`individual right—namely, the right not to be personally injured by a drug that is mislabeled and
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`misleadingly marketed—that the City asserts, although the City asserts the right indirectly and
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`derivatively, and not in relation to real property.
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`This line between public and private nuisance, which Connecticut courts have
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`consistently maintained, lends rigor to the public nuisance doctrine and prevents public officials
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`from meddling in private controversies or private claims by circumventing established standards
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`for proving product liability claims. Cf. Wright, 2007 WL 1532315 (plaintiff’s decision to pump
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`gas was not “exercise of any legally recognizable public right” and “[t]o hold otherwise requires
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`a quantum leap in our public nuisance appellate jurisprudence”).
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`The Complaint ignores this controlling Connecticut precedent. All that the Complaint
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`says about any “public right” is contained in a single, circular allegation: Distributors interfered
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`with City residents’ “common right to be free from conduct that constitutes an unreasonable
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`interference with public health, safety, peace, and welfare.” Compl. ¶ 288. Alleging a “common
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`right to be free from unreasonable interference” is no different than alleging a negligent
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`tortfeasor owed a duty not to be negligent.
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`The Complaint does not state clearly what the alleged public right is because to do so
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`would expose how far removed it is from the public rights recognized in the case law—i.e.,
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`rights rooted in property and land use, like the public right to unpolluted air or safe travel on a
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`public highway. See Miller, 2005 WL 288662, at *1. The opioid epidemic is a pressing social
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`issue, but there is no public right to be free from prescription drugs that are deceptively
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`marketed, mis-prescribed, or misused. The “right” to be safe from defective products is an
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`individual right. That individual right does not become a public right because the product
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`allegedly injures a large number of persons. Connecticut law is clear: whether a right is public
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`does not turn on “the number of persons annoyed.” Boyne, 110 Conn. App. at 606; Restatement
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`(Second) of Torts § 821B cmt. g (1979) (“Conduct does not become a public nuisance merely
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`because it interferes with the use and enjoyment of land by a large number of persons.”); see
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`Lead Indus., 951 A.2d at 448 (a public right is “more than an aggregate of private rights by a
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`large number of injured people)”; City of Chicago v. American Cyanamid Co., 823 N.E.2d 126,
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`131 (Ill. App. Ct. 2005) (public nuisance is more than “an assortment of claimed private
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`individual rights”).
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`C.
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`The City Failed to Allege That Distributors Exercised Control Over the
`Instrumentality of Nuisance.
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`The City’s public nuisance claim should also be stricken for a third, independent reason.
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`As explained above, Connecticut public nuisance law requires that a plaintiff allege that the
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`defendant’s “use of the land was unreasonable or unlawful.” “A critical factor in this test,” the
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`Connecticut Supreme Court has held, “is whether the defendant exercises control over the
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`property that is the source of the nuisance.” State v. Tippetts-Abbett-McCarthy-Stratton, 204
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`Conn. 177, 183, 185, 527 A.2d 688 (1987) (also observing that “[o]ther jurisdictions have
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`explicitly recognized control as an essential predicate to nuisance liability”); see, e.g., Tioga
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`Pub. Sch. Dist., 984 F.2d at 920 (“[Nuisance liability] turns on whether the defendant is in
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`control of the instrumentality alleged to constitute a nuisance, since without control a defendant
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`cannot abate.”); Lead Indus., 951 A.2d at 449 (“[A] defendant must have control over the
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`instrumentality causing the alleged nuisance at the time the damage occurs.” (emphasis in
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`original)); Traube v. Freund, 775 N.E.2d 212, 216 (Ill. App. Ct. 2002) (noting that the “absence
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`of a manufacturer’s control over a product at the time the nuisance is created is generally
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`fatal”); Gelman Scis., Inc. v. Dow Chem. Co., 508 N.W.2d 142, 144 (Mich. Ct. App. 1993) (“If
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`a commercial transaction is involved, control of the nuisance at the time of injury is required.”).
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`This requirement stems, in part, from a recognition that the defendant cannot abate the nuisance
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`if it does not control the instrumentality that creates the nuisance. Under Connecticut law,
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`provision of a product or services to users of property does not establish “use of the property.”
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`See Heritage Vill. Master Ass’n, Inc. v. Heritage Vill. Water Co., 30 Conn. App. 693, 709, 622
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`A.2d 578 (1993).
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`Because the City does not allege misuse of, or interference with, property rights, it does
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`not allege control of land or property. But even if the City did not have to show an
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`unreasonable use of or interference with land, the City fails to allege that Distributors controlled
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`the opioid medications at the time that they allegedly became or created a nuisance. There was
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`no nuisance created at the time of distribution of prescription opioid drugs to DEA-registered
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`and state-licensed pharmacies, where the medications remained until dispensed to a patient who
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`presented a doctor’s prescription. Any nuisance allegedly involving, in part, prescription
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`opioids occurred after the patient left the pharmacy, either because the patient abused the
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`medication, having secured it by fraud from the doctor and/or the pharmacy, because the patient
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`gave or sold the medication to others, or because the patient failed to guard against theft.7
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`Distributors have no control over the pharmacy when it dispenses the medication or the patient
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`7 DEA reports that those who misuse opioid medications get them from family and friends more than half the
`time. U.S. Dep’t of Justice Drug Enforcement Admin., 2017 National Drug Threat Assessment (Oct. 2017) at
`33-34, available at https://www.dea.gov/docs/DIR-040-17_2017-NDTA.pdf.
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`when he or she uses (or does not use) the medication, just as they have no control over the
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`doctor when he or she prescribes the medication. Of course, the alleged nuisance involving
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`opioid abuse, addiction, overdose, and death also significantly involves the concurrent or
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`independent abuse of illegal opioids (heroin, fentanyl, black market prescription opioids,
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`counterfeited pills, etc.) that Distributors have no control over at any point in time.
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`D.
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`The City Does Not Plausibly Allege Proximate Causation.
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`In addition, the City fails to support its public nuisance claim with factual allegations
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`that, taken as true, show that Distributors caused the alleged public nuisance. This failure
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`follows from the fact that the City does not allege the most basic foundational facts—e.g., (1)
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`that even a single wholesale order by any pharmacy was actually “diverted,” as opposed to
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`dispensed pursuant to a doctor’s prescription, or (2) how any conduct or omission of Distributors
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`led to diversion of any order at or downstream from the pharmacy.
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`Diversion is the transfer of controlled substances to persons not entitled to receive them.8
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`It inherently involves unlawful conduct—e.g., by the patient, in fabricating a complaint of pain
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`or in obtaining prescriptions from more than one doctor; by the doctor, in prescribing
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`medications without determining whether there is a legitimate medical basis; by the pharmacist,
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`in selling them illegally; and by pleasure-seekers, in buying or stealing them from persons who
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`obtained them legally from a doctor.
`
`As in Ganim, which dismissed claims against gun manufacturers based on their
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`remoteness from the alleged injury, “the sheer number of links in the chain of causation” compel
`
`
`8 Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health, at 4 (2016)
`(defining diversion as “transfer of any legally prescribed controlled substance from the person for whom it was
`prescribed to another person for any illicit use”). Available at
`https://addiction.surgeongeneral.gov/sites/default/files/surgeon-generals-report.pdf.
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`the conclusion that the City’s injuries are, at best, “derivative of those suffered by the various
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`actors in between the defendants and the plaintiffs.” See Ganim, 258 Conn. at 355; see also City
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`of Chicago, 821 S.E.2d at 1136 (“[D]efendants’ lawful commercial activity, having been
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`followed by harm to person and property caused directly and principally by the criminal activity
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`of intervening third parties, may not be considered a proximate cause of such harm.”).
`
`The Eighth Circuit’s opinion in Ashley County, Arkansas v. Pfizer, Inc., dismissing a
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`public nuisance claim against distributors is instructive. It held that “it is inadvisable as a matter
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`of public policy to deem the [distributor] defendants’ actions a legal cause of the alleged
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`nuisance” where “[n]one of the Defendants [sellers of pseudoephedrine] are retailers, nor do they
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`sell the medications directly to the public,” but rather sold their products to “independent
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`retailers” from whom illegal methamphetamine cooks obtained the products. 552 F.3d 659, 663,
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`671 & n.5, 672 (8th Cir. 2009); see also City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d
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`415, 426 (3d Cir. 2002) (affirming dismissal due to lack of proximate cause of claims against
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`gun distributors, including for public nuisance, for city’s costs of responding to crime, injuries,
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`and property damage from gun violence, stating—many “links . . . separate a manufacturer’s sale
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`of a gun to a [licensed retailer] and the gun’s arrival in the illegal market through a distribution
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`scheme that is not only lawful, but also is prescribed by statute with respect to the
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`manufacturer’s conduct”); Perry v. Town of Putnam, 162 Conn. App. 760, 768, 131 A.3d 1284
`
`(2016) (town not liable in public nuisance for third parties’ “unpleasant and disruptive behavior”
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`at town-built parking lot; such behavior “is the proper bailiwick of police regulation and control,
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`not of the law of nuisance”).
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`The same result is appropriate here.
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`II.
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` THE COURT SHOULD STRIKE THE CUTPA CLAIM.
`
`The Court should strike the CUTPA claim for two reasons. First, the City does not c