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Local doctors seek dismissal from massive opioid litigation

A billboard designed to highlight public awareness in Anne Arundel County tracks the annual toll as of April 30, 2018: 332 overdoses and 56 deaths. (Maximilian Franz)

A billboard designed to highlight public awareness in Anne Arundel County tracks the annual toll as of April 30, 2018: 332 overdoses and 56 deaths. (Maximilian Franz)

Local doctors caught up in litigation against opioid manufacturers and distributors lack both the massive legal teams and vast potential resources of their co-defendants, and they are asking judges to dismiss them from the complex lawsuits where their alleged wrongdoing is barely mentioned.

Fourteen Maryland counties and 10 cities have filed lawsuits against companies like Purdue Pharma since last year, accusing them of engaging in a scheme to deceptively market the drugs and flood the market, contributing to an addiction crisis. Though most complaints name the same corporate defendants — Purdue, Janssen Pharmaceuticals, Endo Pharmaceuticals — some included local prescribers and their practices.

Counties like Anne Arundel and Prince George’s and cities including Baltimore and Annapolis have accused local doctors and pharmacies of operating “pill mills” that improperly distributed opioids and of being complicit in the pharmaceutical companies’ scheme to over-prescribe the drugs.

As the lawsuits work their way through state and federal courts, few if any motions to dismiss have been ruled on. No local defendants appear to have been dismissed, according to online court records.

Some of the local defendants have already been the targets of federal and state investigators. Rosen-Hoffberg Rehabilitation and Pain Management Associates P.A. in Baltimore was raided by federal agents last year. Multiple doctors named in Anne Arundel County and Annapolis’ lawsuits were indicted by the Maryland Office of the Attorney General and have since pleaded guilty to controlled dangerous substance distribution.

In papers filed in state and federal courts, the doctors generally argue they should be dismissed from the opioid lawsuits because the claims against them, which represent a small fraction of the allegations in the lengthy complaints, are more properly framed as medical negligence actions rather than Consumer Protection Act violations and public nuisances.

Maryland law requires claims against health care providers be filed with the Health Claims Arbitration Dispute Resolution Office, according to a motion to dismiss filed May 14 by Lawrence Vidaver, a doctor being sued by Annapolis and Anne Arundel County.

The defendants also claim the plaintiffs have made conclusory allegations against them without any details to support the claims.

“Interesting as the claim to abate public nuisance may be it is without the Plaintiff describing a nuisance which ought to be abated other than the subjective belief that uploads being manufactured, distributed and prescribed constitute a nuisance,” attorneys for Rosen-Hoffberg and its physicians wrote in a motion to dismiss filed last June. “There is no specific factual allegation against these defendants that they have created any nuisance.”

Nurse Practitioner Happiness Aguzie, another one of the defendants named by Annapolis and Anne Arundel County, pointed out in a motion to dismiss filed May 14 in the Annapolis case that she is “specifically mentioned in three paragraphs in the Complaint” but otherwise lumped in with more than 20 defendants. She called this a “group pleading,” which is generally rejected by courts.

“In this matter, the Complaint is replete with generalized allegations against the defendants as a group and are impermissible,” she said.

The lawsuits generally allege the drug companies knowingly mislead doctors and consumers about the addictive quality of prescription opioids and manufactured a market by overstating their benefits for chronic pain treatment. They also claim distributors knowingly supplied opioids in quantities they should have known exceeded any legitimate market.

The corporate defendants have denied the allegations in all of the lawsuits and stress their commitment to the appropriate use of their products and to combating the opioid epidemic.

The doctors names in the lawsuits are accused of either participating in kickback schemes run by the drug companies or of prescribing the drugs excessively and directly contributing to the crisis, which the pharmaceutical companies should have recognized and flagged pursuant to reporting laws.

Jurisdiction issues

The doctors are not alone in wanting themselves excised from the lawsuits; opioid manufacturers and distributors have also argued the local defendants should not be involved and were only included to interfere with possible federal jurisdiction.

The corporate defendants claim the local ones were named so there would not be “complete diversity” of citizenship among the defendants, making it difficult to remove the cases to federal court where the large companies are already engaged in multi-district litigation to streamline the nearly 2,000 lawsuits against them.

The drug companies have still attempted to remove the cases to federal court, arguing the “tacked on” local defendants could be severed and their cases handled in state court. Anne Arundel County and Baltimore successfully litigated motions to remand in federal court and returned their cases to their local circuit courts. Other counties and cities have been transferred to the federal multi-district litigation, and their motions to remand will be ruled on later.


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