The Tennessee Supreme Court has ruled that opioid producers can be sued under the state’s Drug Dealer Liability Act, allowing a lawsuit filed on behalf of children born dependent to opioids to move forward.
The high court made the unanimous ruling Thursday, stating that the plaintiffs have standing to bring their case against Endo Health Solutions, Endo Pharmaceuticals and Teva Pharmaceuticals USA under the law that protects people and entities injured by illegal drug use.
“If the Baby Doe plaintiffs prove their allegations at trial, a jury could reasonably conclude that the Drug Companies knowingly participated in the illegal drug market,” Justice Sharon Lee wrote in the opinion.
The ruling affirms a lower appeals court’s decision that the drug dealer law could apply.
However, justices partly overturned that court by saying district attorneys could not remain plaintiffs in the case because the law does not list them as parties who can sue under its protections.
That does not affect the case’s ability to move forward, since the children born addicted to opioids remain plaintiffs. Additionally, district attorneys “could serve as legal counsel for a party who has statutory standing to sue,” the opinion says.
An attorney leading the lawsuit said he expects the case to head to trial “as soon as the current pandemic allows jury trials to resume.” The trial has been delayed several times and a new date has not been set yet.
“By its decision, the Court has helped ensure that the opioid producers who flooded our communities with pills will face a jury of citizens where they will have to explain their reprehensible conduct,” attorney Gerard Stranch said in a statement.
In 2018, a Campbell County judge ruled that Tennessee’s drug dealer law “does not apply to manufacturers who are legally producing and distributing opioid medications.”
The Court of Appeals overturned that decision in September 2019. Drug companies appealed, arguing that the court interpreted the law so broadly that whiskey makers could be liable “simply because they `know’ that some portion of their whiskey would likely be consumed illegally by someone under the age of 21.”
Attorney General Herbert Slatery’s office weighed in and drew the split decision that it wanted from the Supreme Court.
In an amicus brief, Slatery wanted the drug dealer standing issue upheld, but argued the district attorneys could not be plaintiffs who sue under the law, contending that could jeopardize opioid cases brought by the attorney general by “putting the cases initiated by the Attorney General and district attorneys at loggerheads with each other.”
The lawsuit, brought by seven Tennessee district attorneys and two children born dependent on opioids, claims manufacturers including Purdue Pharma, Endo Pharmaceuticals, Teva Pharmaceuticals and Mallinckrodt were fully aware that their products were being diverted.
Mallinckrodt and Purdue Pharma have filed for bankruptcy and were granted a stay of litigation.
In Tennessee, with a population of about 6.8 million, there were nearly 12 million prescriptions for opioids over the two-year period beginning September 2015, the lawsuit states.
The suit claims manufacturers actively identified and targeted pharmacies they knew were overprescribing.
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