Pharmacies And Drug Cos. Want Out Of Texas Opioid MDL

Jan 23, 2023

A group of Texas pharmacies and generic-drug manufacturers told a Harris County judge Friday that they should be allowed out of an opioid suit brought against them by Dallas and Bexar counties, arguing the jurisdictions didn’t follow certain procedural requirements under state health care law and that federal law preempts some of their claims.

Primarily at issue Friday was Dallas County’s fifth amended petition against a swath of pharmacies — including CVS, Walgreens, Walmart and Kroger — and generic-drug manufacturers, which the county filed in May. Bexar County filed a similar suit against the defendants in August.

Both suits name seven causes of action, including public nuisance, negligence and violations of the Texas Controlled Substances Act, and are part of a slew of litigation related to the opioid crisis that was consolidated in the 152nd Harris County District Court in 2018.

During Friday’s hearing, Dallas County’s counsel Jeffrey B. Simon of Simon Greenstone Panatier PC told the court that the pharmacies’ argument that the Texas Medical Liability Act applies to its case doesn’t fly because its suit does not include health care liability claims.

Simon said the county’s central claims — that pharmacies didn’t have effective systems in place to control their distribution, that the pharmacies engaged in illicit trafficking by giving opioid prescriptions to illegitimate patients, and that they promoted the drugs in deceptive ways — don’t have to do with the treatment of a patient and therefore the TMLA can’t apply.

“This is the wrong vehicle to pluck out a piece of our action,” Simon told the court.

Simon also argued that the TMLA is reserved for personal injury claims brought by individuals, not governmental entities.

Both the pharmacy defendants and the generic manufacturers motions to dismiss were 91(a) motions, which Simon said set a “very high burden they have not met.”

Simon told Law360 that 91(a) motions — or motions to dismiss suits that are not based in law or fact — don’t allow for “novel theories to be utilized to dismiss claims.”

“The issue of whether a governmental entity is a ‘person’ as a matter of law in relation to the TMLA is unclear but the notion that it’s a per se ‘claimant’ is even weaker,” Simon said.

Conor B. O’Croinin of Zuckerman Spaeder LLP, counsel representing CVS defendants who argued… continue to full article below.