District Court Judge Timothy Williams cleared the way for a Clark County opioid lawsuit Wednesday, denying 13 separate motions to dismiss the case and allowing the suit against more than a dozen pharmaceutical companies to move forward.
In ruling from the bench, Williams said, “It’s time to get this litigation moving,” noting that it’s been more than a year since the county’s original complaint against the pharmaceutical companies was filed.
Even with today’s ruling, Robert Eglet, an attorney representing the county, said it could be years before the case reaches any kind of conclusion.
“A case like this, you could have interlocutory appeals — writs to the Supreme Court where things get stayed — and we have to go up and deal with that,” Eglet said. “Sometimes it can be six months before you get something like that ruled on, but generally, a case like this takes anywhere from two to six years to be completed.”
Clark County filed its initial complaint in late 2017, alleging a number of defendants related to the manufacturing, distribution or sale of highly addictive opioids had sought to play up the effectiveness and downplay the possible dangers of their drugs in an effort to boost profits. Those named defendants are largely made up of pharmaceutical companies such as Purdue Pharma or Janssen Pharmaceuticals, though the case also goes after distributors, pharmacies and some so-called “detailers,” or pharmaceutical sales representatives.
Representatives for the defense did not respond to a request for comment.
But in two days of highly technical, sometimes contentious oral arguments, lawyers for the drug companies argued the complaint was fatally flawed and should have been dismissed.
In addition to a number of claims specific to each defendant, they claimed the county lacked standing — or an ability to bring the case at all — because of another ongoing suit from the attorney general’s office, that FDA approval and oversight from the DEA “pre-empted” the county’s ability to sue, and that the complaint was too general in its accusations.
They also argued that, though the complaint doesn’t mention fraud as a specific “cause of action,” the county had outlined a fraud case and should therefore be bound by a higher pleading standard, and that the county, though it claimed the companies lied to doctors and pharmacies, made no specific mention of what those lies were, or when or to whom they were made.
But lawyers for the defense were frequently questioned by Williams, who often pressed them on the interpretation of the Nevada Rules of Civil Procedure, which govern the way civil cases play out.
At one point, after one of nearly a dozen lawyers for the defense had argued multiple times that the complaint lacked specificity, Williams asked, “Are we to have a thousand-page complaint?”
Representatives for the county in turn argued that state civil procedure rules were in this case modified by existing case law, meaning that the complaint could proceed under a lower bar or “pleading standard.”
But lawyers for the pharmaceutical companies also argued that Clark County was barred from receiving damages because of the “municipal cost recovery rule,” a common law principle which keeps cities from seeking damages for services that they would have completed anyway, such as police work or fire rescues, that has not been adopted in Nevada.
But Eglet argued that the damages being sought were for costs only incurred expressly because of the opioid crisis, such as hospital bills or police response to opioid related emergencies.
At another point, late into the second day of oral arguments, Eglet pointed a finger at an attorney representing Insys Therapeutics, maker of Fentanyl, and accused his company of complicity in the death of a Henderson judge by Fentanyl overdose in 2016.
Then, to demonstrate the lengths to which he asserted that Insys went to promote Fentanyl, Eglet showed the judge a music video the company had developed that he said “promoted the off-label use” of their drugs. That video shows sales representatives from the company dancing alongside a mascot of a Fentanyl spray encouraging other sales representatives to push doctors to slowly increase the prescribed dosage of the drug, a process called “titration.”
Eglet said it was “just a sample” of what the county would obtain through the discovery process.
But a lawyer representing Teva Pharmaceutical Industries, who followed that presentation, flipped the argument and said that Eglet’s insinuation that all of the defendants had engaged in such behavior undermines the entire complaint, as he had only demonstrated such behavior by Insys.
Moving forward, Williams told the court that the case would likely require a special master, or a third party who will oversee the discovery process. Such special masters are not unusual in cases like Clark County’s, and they have been used in high profile cases.
Several other county and municipal lawsuits against pharmaceutical companies with an alleged role in the opioid crisis are ongoing, in addition to the lawsuit from the attorney general’s office.