Manufacturers Move to Dismiss Arkansas Complaint Seeking ‘Future Costs’ of Opioid Crisis

On Friday in the Circuit Court of Crittenden County, Arkansas, the pharmaceutical manufacturer defendants in a case by the state of Arkansas seeking to hold companies accountable for “future public costs” incurred from the opioid crisis moved to dismiss a fourth amended complaint.

The state of Arkansas, along with 75 counties, 16 cities, and Second Judicial Circuit Prosecutor Scott Ellington, claimed that the defendants should be liable for costs associated with allegedly perpetuating the opioid epidemic; specifically, they alleged in the complaint that the pharmaceutical manufacturers “failed to unilaterally cease shipments to DEA-registered distributors that were later shipped to pharmacies in Arkansas and subsequently diverted and abused by third parties,” according to the motion.

The defendants firstly argued that Arkansas’ observance of the remoteness doctrine should be grounds for the full dismissal of the complaint: “(A) plaintiff who complain(s) of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts (is) generally said to stand at too remote a distance to recover,” according to Arkansas Carpenters’ Health & Welfare Fund v. Philip Morris. The costs the plaintiffs are seeking to recover — future expenses related to “medical” and “addiction treatment costs” of residents stemming from the opioid crisis, the complaint said — come from such “misfortunes visited upon” the residents and not harm done directly to the plaintiffs, the defendants claimed.

Further, the defendants argued that the causal link between the defendants’ conduct and the plaintiffs’ alleged injury is too weak; “(t)hat is, the defendant’s alleged conduct must be the ‘immediate and direct cause of’ the plaintiff’s alleged injury,” the motion stated. The defendants noted that in a prior litigation by Ashley County, Arkansas, which sought to hold cold medicine manufacturers liable for marketing and selling their products while allegedly knowing they were being used to make methamphetamine, the Eighth Circuit dismissed the county’s claims for lack of proximate cause: “Proximate cause is bottomed on public policy as a limitation on how far society is willing to extend liability for a defendant’s actions,” the Eighth Circuit explained. The defendants in the present case argued that Ashley County should be instructive here, arguing that no “immediate and direct” relationship between the propagation of opioids by the manufacturers and the alleged harm.

The remaining causes of action brought by the plaintiffs “suffer from claim-specific deficiencies,” the defendants proffer, including negligence allegations, among others. Regarding negligence, the plaintiffs would have had to show a duty of care, and thus a “special relationship” pursuant to Arkansas law, owed by the manufacturer defendants. The defendants said no such special relationship exists, arguing that the plaintiffs would have to “fall within the class of persons intended to be protected by the statute and sustain injury of the kind the statute is designed to prevent,” but the complaint cites drug control laws that “were not designed to protect state and local governments from sustaining purported economic losses, but rather to protect end-users from abusing medications.”

The plaintiffs are represented by prosecutor Scott Ellington, Association of Arkansas Counties, Arkansas Municipal League, McDaniel, Wolff & Benca PLLC, the Edwards Firm PLLC, and Thrash Law Firm PA. The defendants are represented by Kutak Rock LLP, Arnold & Porter Kaye Scholer LLP, Friday Eldredge & Clark LLP, O’Melveny & Myers LLP, Watts, Donovan, Tilley & Carson PA, Morgan, Lewis & Bockius LLP, Reece Moore McNeill Pendergraft, and Winston and Strawn LLP.