BRISTOL, Tenn. — A lawsuit brought by three Northeast Tennessee district attorneys general seeking to hold drug companies accountable for the region’s opioid crisis — set to go to trial in a Bristol courtroom later this month — has been postponed to August after the state Supreme Court temporarily suspended jury trials amid the coronavirus pandemic.
The trial for the “Sullivan Baby Doe” case, originally set for May 18, will now start Aug. 17, according to a recent filing. The Tennessee Supreme Court suspended jury trials through at least July 3.
Named for a baby born in Sullivan County with neonatal abstinence syndrome, one of the lawsuit’s main arguments is that opioid manufacturers flooded the region with addictive prescription drugs and profited from the sale of products that eventually entered a black market.
The suit contends that the companies should be identified as drug dealers under the Tennessee Drug Dealer Liability Act. If the district attorneys general (DAGs) win their case, it might allow for the recovery of damages caused by illegal drug use, including the cost of treatment, rehabilitation and medical expenses.
The lawsuit was filed in 2017 by a group of DAGs from nine counties in the region, including Barry Staubus in Sullivan County.
The date change comes as Sullivan County Chancery Court Judge E.G. Moody also denied a request from opioid manufacturers’ attorneys to pause the proceedings as an appeal for a separate but similar lawsuit is on track to go before the Tennessee Supreme Court.
On March 26, the Supreme Court agreed to hear Effler v. Purdue Pharma LP, a suit brought by a different group of DAGs against drug manufacturers. The two central questions in that appeal are, first, whether DAGs have the authority to represent local governments in Drug Dealer Liability Act suits without the consent of local governments, and second, if the act applies to pharmaceutical companies.
The companies argue that DAGs involved with the suits lack standing — a legal term that refers to the ability of a party to bring a lawsuit — and that the state law covers “street dealers,” not regulated corporate entities.
In a previous ruling in the Effler case, a Knoxville appeals court found that DAGs can bring these cases and that the act applies to drug manufacturers.
“The common perception of a drug dealer may be that of the street dealer, but the DDLA does not make that distinction,” the court wrote in its opinion last September.
The companies then appealed the case, and the state Supreme Court granted review, although it’s not yet clear how long that process may take.
So lawyers for manufacturer defendants urged Judge Moody to halt or “stay” the local case in Sullivan County Circuit Court pending the Supreme Court’s decision in the Effler case.
If the case in Sullivan County continues moving forward, a trial could be “rendered moot” if the Supreme Court rules in favor of drug manufacturers on questions relevant to the local case, attorneys for Mallinckrodt LLC, Endo Health Solutions Inc. and Endo Pharmaceuticals Inc. wrote in a filing.
In response, attorneys bringing the case claimed that the manufacturers’ motion was “just another ploy to avoid a trial.”
Staying the case “would be a colossal waste of resources” given that the case was approaching trial, and “stopping it now would nullify three years of time and effort by the parties,” lawyers for the DAGs wrote.
Moody denied the request for a stay in a May 4 order.
The judge wrote, in part, that “although this case and the Effler case have some overlapping issues, the evidence in each case is significantly different which could result in different holdings” and that “it is more probable than not” the state Supreme Court would agree with the appeals court.
In a separate ruling also filed May 4, Moody found the Endo defendants in contempt of court for failing to do a reasonable search and produce responsive documents during discovery, the legal process by which the parties in a case exchange and obtain information before trial.
Moody ordered Endo’s attorneys to provide a number of responsive documents to the plaintiffs. He did not issue any specific sanctions but said punishments and remedies could be affected by compliance with his order.
Discovery has proven to be a contentious process for the parties in the Sullivan Baby Doe case, with attorneys for the DAGs claiming that Endo failed to produce documents in a timely fashion and withheld records relevant to the case.
For their part, Endo’s attorneys have said they’ve provided documents in a reasonable manner and acted in good faith.
If the DAGs ultimately succeed in winning a judgment in the suit, they hope to use any financial resources awarded for a variety of treatment and recovery programs that were detailed in a $2.4 billion, 15-year plan to address the region’s opioid epidemic.
Yet, given that some major drug manufacturers have declared bankruptcy in the face of opioid-related litigation, it’s unclear what kind of a judgment localities may even receive if they do win their case. Purdue Pharma, for example, was also named as a defendant in the Sullivan Baby Doe suit, but the company declared bankruptcy last year as it tried to settle thousands of lawsuits.