The opinion
09/11/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 18, 2019 Session
JARED EFFLER, ET AL. v. PURDUE PHARMA L.P., ET AL.
Appeal from the Circuit Court for Campbell County
No. 16596 John D. McAfee, Judge
No. E2018-01994-COA-R3-CV
This appeal concerns the interpretation of the Drug Dealer Liability Act, Tenn. Code
Ann. § 29-38-101, -116 (“DDLA”). A number of Tennessee district attorneys (“the
District Attorney Plaintiffs”), as well as two minor children through their guardian ad
litem (“Plaintiffs,” all together), sued certain drug manufacturers (“Manufacturer
Defendants”) and others in the Circuit Court for Campbell County (“the Trial Court”)
alleging the diversion of opioids.1 Manufacturer Defendants filed a motion to dismiss.
The Trial Court, in granting the motion to dismiss, held that the DDLA does not apply to
manufacturers who lawfully produce drugs and that Plaintiffs had failed to state a claim
upon which relief can be granted. Plaintiffs appeal, arguing that their complaint
contained allegations sufficient to withstand the motion to dismiss. Manufacturer
Defendants contend that the DDLA applies to “street dealers,” not regulated entities such
as themselves. In addition, Manufacturer Defendants argue that the District Attorney
Plaintiffs lack standing. We hold, first, that the DDLA allows district attorneys to pursue
DDLA claims on behalf of the political subdivisions within their respective judicial
districts. Thus, the District Attorney Plaintiffs have standing. We hold further that,
taking as true Plaintiffs’ detailed allegations that Manufacturer Defendants knowingly
participated in the diversion of opioids, Plaintiffs have stated claims upon which relief
can be granted. We reverse the judgment of the Trial Court and remand for this case to
proceed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and THOMAS R. FRIERSON, II, J., joined.
1
“Diversion” means, for these purposes, the redirection of a drug from a proper use to an illicit use.
Michael J. Wall, James G. Stranch, III, J. Gerard Stranch, IV, Tricia Herzfeld, Benjamin
A. Gastel, and Anthony Orlandi, Nashville, Tennessee, for the appellants, Baby Doe #1
and Baby Doe #2, as well as District Attorneys Jared Effler, Eighth Judicial District;
Charme Allen, Sixth Judicial District; Dave Clark, Seventh Judicial District; Russell
Johnson, Ninth Judicial District; Stephen Crump, Tenth Judicial District; Jimmy Dunn,
Fourth Judicial District; and, Mike Taylor, Twelfth Judicial District.2
Ronald S. Range, Jr. and Chad E. Wallace, Johnson City, Tennessee; Ingo W. Sprie, Jr.,
New York, New York; and, R. Stanton Jones, Washington, D.C., for the appellees, Endo
Health Solutions, Inc. and Endo Pharmaceuticals, Inc.
Aubrey B. Harwell, Jr., James G. Thomas, Mariam A. Stockton, and William J. Harbison,
II, Nashville, Tennessee; Sheila L. Birnbaum, Mark S. Cheffo, and Bert Wolff, New
York, New York, for the appellees, Purdue Pharma, L.P., Purdue Pharma, Inc., and The
Purdue Frederick Company, Inc.
Jessalyn H. Zeigler and Sarah B. Miller, Nashville, Tennessee; David H. Stanifer,
Tazewell, Tennessee; and, Brien J. O’Connor and Andrew J. O’Connor, Boston,
Massachusetts, for the appellee, Mallinckrodt LLC.
Tim Warnock and Stuart Burkhalter, Nashville, Tennessee; Tinos Diamantatos (admitted
pro hac vice) and Megan R. Braden (admitted pro hac vice), Chicago, Illinois; Steven A.
Reed (admitted pro hac vice), Philadelphia, Pennsylvania; and, Brian M. Ercole, Miami,
Florida, for the appellee, Teva Pharmaceuticals USA, Inc.
Jerry N. Estes, Nashville, Tennessee, for amicus curiae, the Tennessee District Attorneys
General Conference.
Douglas S. Johnston, Nashville, Tennessee, for amicus curiae, the Tennessee Municipal
League.
Andrew E. Farmer, Sevierville, Tennessee, for amicus curiae, the United Way of Greater
Kingsport.
Gary R. Wade, Knoxville, Tennessee, for amici curiae, the local Chambers of Commerce
of Bristol, TN/VA and Johnson City.
2
The District Attorney Plaintiffs purport to act in their official capacities on behalf of the political
subdivisions within their respective judicial districts. Their standing to pursue DDLA claims in this
manner is an issue we address herein.
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OPINION
Background
In this appeal, we address questions regarding the DDLA, an Act establishing a
civil cause of action for persons injured by illegal drugs against persons participating in
the illegal drug market in Tennessee. This case began in September 2017 when Plaintiffs
sued Manufacturer Defendants, as well as a pain clinic and certain individual defendants,
in the Trial Court. Plaintiffs pursued DDLA and public nuisance claims stemming from
the alleged diversion of prescription opioids. The Attorney General of Tennessee moved
to intervene. Plaintiffs later voluntarily dismissed their nuisance claims as well as any
DDLA claim on behalf of the State, and consequently the Attorney General withdrew his
motion to intervene. In June 2018, Plaintiffs filed their Third Amended Complaint,
which is the operative complaint. In the Third Amended Complaint, Plaintiffs pressed
forward with their DDLA claims on behalf of the political subdivisions within the
District Attorney Plaintiffs’ judicial districts and the Baby Doe plaintiffs.
As this case was resolved on a motion to dismiss, the allegations contained in the
Third Amended Complaint are of central importance. We therefore deem it appropriate
to set out some, though not all, of the Third Amended Complaint, which takes up over an
entire volume of the technical record. Plaintiffs alleged, in part:
276. After helping to create the opioid epidemic, Purdue has worked to
sustain that illegal opioids market and to continue profiting from it.
277. There were nearly twelve million (11,788,252) prescriptions of
popular branded and generic opioid products containing hydromorphone,
oxymorphone, oxycodone, and hydrocodone in the State of Tennessee for
the 24-month period of September, 2015 through August, 2017 according
to IMS data.
278. Purdue’s average market share of oxycodone in Tennessee from 2015
to 2017 was nearly 5%, led by its popular brand product OxyContin. Based
on this market share over the course of this same period, OxyContin was
prescribed approximately 32,750 times in Knoxville (population 186,239),
19,550 times in Chattanooga (population 177,571), and 3,417 times in
Cleveland, TN (population 44,271).
279. Purdue knows exactly how much of its product flows into the Opioid
Epidemic Affected Counties. On the heels of its 2007 plea agreement,
Purdue approached wholesalers and struck agreements allowing the
company access to their sales reports. This data allowed Purdue’s security
team to track all wholesalers’ OxyContin sales to individual pharmacies,
down to the pill.
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280. Purdue is also put on notice when OxyContin is likely being diverted
in the Opioid Epidemic Affected Counties, and can react by halting
shipments into the affected areas. In July 2016, Purdue’s general counsel
acknowledged that the company is “required to monitor and report
suspicious orders to the DEA,” and that while Purdue cannot halt shipments
to suspect pharmacies, they “can and have reduced the product they ship to
a wholesaler if they have concerns about the customer at the end of the
supply chain.”
281. Purdue tracked physicians’ prescribing practices by reviewing
pharmacy prescription data it obtained from IMS Health. Rather than
reporting highly suspicious prescribing practices, Purdue used the data to
identify physicians who prescribed some opioids and might be persuaded to
prescribe more.
***
314. Mallinckrodt knowingly entered and participated in the illegal drug
market in Tennessee and the Opioid Epidemic Affected Counties.
Mallinckrodt is aware of the extraordinary volume of opioid prescriptions
in Tennessee in relation to other states referenced above, as well as the
flood of opioids into East Tennessee at levels that cannot be medically
justified. As reported by the CDC, Tennessee’s oxycodone prescription
rate is twenty-two times that of Minnesota’s. Mallinckrodt knew (and
knows) that such inflated prescribing necessarily reflects improper
prescribing and diversion of opioids, including Mallinckrodt’s products.
315. Mallinckrodt knowingly participated in the illegal drug market in
Tennessee and elsewhere by knowingly shirking its responsibility to detect
and investigate suspicious orders, for which it was cited by the DEA. It
also admitted that it had failed to stop downstream diversion despite being
on notice that diversion was occurring. Despite controlling nearly 25% of
the opioids market in Tennessee, Mallinckrodt has failed to take
meaningful or effective measures to stop the open and notorious
downstream diversion that precipitated its July 2017 settlement. To the
contrary, it has continued to supply opioids into Tennessee, East Tennessee,
and the Opioid Epidemic Affected Counties unabated, despite awareness
that a substantial volume of those drugs are being abused and diverted into
an illegal market.
316. Additionally, Mallinckrodt possesses, or has access to, the non-public
information necessary to monitor, investigate, report, and prevent
suspicious orders and illegal diversion, but has knowingly failed to do so.
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***
332. Endo knowingly entered and participated in the illegal drug marketing
in Tennessee and the Opioid Epidemic Affected Counties. Endo is aware
of the extraordinary and unjustifiable volume of opioid prescriptions in
Tennessee in relation to other states. Endo knew that such inflated
prescribing necessarily reflects improper prescribing and diversion of
opioids, including Endo’s products. On information and belief, Endo also
knowingly participated in the illegal drug market in the Opioid Epidemic
Affected Counties by supplying quantities of its products to physicians and
pharmacies whose prescribing habits necessarily or likely reflected
unlawful diversion.
333. Additionally, Endo possesses, or has access to, the non-public
information necessary to monitor, investigate, report, and prevent
suspicious orders and illegal diversion, but has knowingly failed to do so.
***
338. Teva continues to flood East Tennessee with opioids in an amount that
clearly contributes to the illegal opioid drug market.
339. Teva’s generic oxycodone and hydrocodone products both represent
the largest market share for either product throughout Tennessee, as well as
specific cities in and around the Opioid Epidemic Affected Counties,
according to IMS Health Data. These quantities of opioid pills clearly
exceed the number that would be appropriate for normally prescribed
therapeutic use and contribute to the illegal East Tennessee opioid market.
340. On information and belief, Teva also knowingly participated in the
illegal drug market in Tennessee by supplying suspicious quantities of its
products to suspect physicians and pharmacies in Tennessee, without
disclosing suspicious orders as required by applicable regulations.
***
349. Upon information and belief, Purdue, Mallinckrodt, Endo, and Teva
each maintained an internal database of HCPs [healthcare providers]
suspected of inappropriately prescribing opioids. HCPs could be added to
the database based on observed indicators of illicit prescribing such as
excessive numbers of patients, cash transactions, patient overdoses, and
unusual prescribing of the highest-strength pills. In particular, Purdue,
Mallinckrodt, Endo, and Teva tracked HCPs’ prescribing practices using
data obtained from IMS Health, which allowed them to identify HCPs
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writing excessively large numbers of prescriptions, particularly for high
doses, which is a potential sign of diversion and drug dealing.
350. Purdue, Mallinckrodt, Endo, and Teva failed to cut off these HCPs’
prescription opioid supply at the pharmacy level — meaning the
pharmaceutical drug producers continued to generate sales revenue from
their prescriptions — and failed to report the unscrupulous providers to
state medical boards and state and federal law enforcement agencies.
351. Upon information and belief, Purdue, Mallinckrodt, Endo, and Teva
also possess what is known as “chargeback” data from their distributors
that can be used to evaluate suspicious downstream orders of prescription
opioids. As reported in the Washington Post, there is an “industry-wide
practice” whereby pharmaceutical drug producers pay their distributors
rebates and/or “chargebacks” on prescription opioid sales. In return, the
distributors provide Purdue, Mallinckrodt, Endo, and Teva with
downstream purchasing information, which allows them to track their
prescription opioids down the entire supply chain, all the way to the retail
level.
352. Using chargeback data, Purdue, Mallinckrodt, Endo, and Teva knew
— just as the prescription opioid distributors knew — the volume,
frequency, and pattern of prescription opioid orders being placed and filled.
By failing to report and/or prevent suspicious orders, Purdue, Mallinckrodt,
Endo, and Teva enabled the supply of prescription opioids to obviously
suspicious physicians and pharmacies, enabled the illegal diversion of
prescription opioids, aided criminal activity and disseminated massive
quantities of prescription opioids into the black market.
***
450. Having illegally distributed hydrocodone, oxycodone, oxymorphone,
OxyContin, Roxicodone, and Opana, the drugs used by their birth mothers
in the “place of illegal drug activity” where the birth mothers consumed
them during their pregnancies, and participated in that illegal distribution
during their pregnancies, Defendants are liable to Plaintiffs BABY DOE #1
and BABY DOE #2 under the DDLA even for damages caused by opioids
that were acquired from distribution channels in which Defendants were a
market participant.
***
465. Defendants knowingly participated in the production and/or
distribution of prescription opioids that reached the Opioid Epidemic
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Affected Counties during all times relevant to this complaint. For purposes
of the DDLA, Defendants’ “illegal drug market target community” is the
entire state of Tennessee, because Defendants participated in the illegal
drug market by distributing 4 ounces or more of a “specified illegal drug.”
Tenn. Code Ann §§ 29-38-104(8), 29-38-109(4). As noted by the
Tennessee Department of Health in a 2015 presentation, the Tennessee
market for hydrocodone and oxycodone pills comprised of 51 hydrocodone
pills and 21 oxycodone pills for every Tennessean. Commissioner of
Health Dreyzehner noted that 50% of mothers of NAS babies obtained their
pills, in whole or in part, from diverted pills (28.7% solely from diverted
drugs). Given that a single oxycodone tablet, on information and belief,
weighs approximately 135 mg and contains at least 10 mg of opioid, there
can be no question that each of Purdue, Mallinckrodt, Endo and Teva far
exceeded the four-ounce level.
466. Purdue, Mallinckrodt, Endo, and Teva knowingly failed to implement
effective controls and procedures in their supply chains to guard against
theft, diversion, and abuse of prescription opioids, and failed to adequately
design and operate a system to detect, halt, and report suspicious orders of
prescription opioids.
***
475. The District Attorney Plaintiffs bring this action under the DDLA to
hold the Defendants civilly liable for the devastation that their facilitation
of the illegal opioids market in East Tennessee has wrought. In so doing,
they are vindicating the stated purpose of the DDLA to undermine the
sprawling illegal opioids market in their communities using civil liability.
(Footnotes omitted). In July 2018, Manufacturer Defendants filed a motion to
dismiss the Third Amended Complaint, relying on Tenn. R. Civ. P. 12.02(1) and (6). On
October 5, 2018, the Trial Court granted Manufacturer Defendants’ motion to dismiss for
failure to state a claim upon which relief can be granted. On October 22, 2018, the Trial
Court directed entry of final judgment as to Manufacturer Defendants.3 In its October 5,
2018 order granting Manufacturer Defendants’ motion to dismiss, the Trial Court stated,
as pertinent to this appeal:
4. The Plaintiffs seek to hold the Manufacturer Defendants liable under the
Tennessee Drug Dealer Liability Act (DDLA), Tenn. Code Ann. 29-38-
3
The claims against the local defendants remain active. This appeal pertains to Manufacturer Defendants
only.
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101, et seq., for the harm caused by third parties who have illegally
distributed opioid medications. Plaintiffs argue that, by over producing
opioid medications and not preventing third parties from illegally
distributing those medications, the Manufacturer Defendants became drug
dealers participating in an “illegal drug market” and are subject to the
DDLA.
5. The Manufacturer Defendants move to dismiss arguing that the plaintiffs
have failed to state a claim upon which relief can be granted and assert four
grounds in their motion: (1) that the plaintiffs have failed to state a claim
under the DDLA; (2) that the plaintiffs have failed to link alleged damages
to specific drug users; (3) that the district attorneys general lack standing to
assert claims for damages allegedly incurred by counties and cities; and (4)
that all claims outside the two year statute of limitation period should be
barred.
LEGAL STANDARD
6. Tennessee has a high bar for granting a motion to dismiss pursuant to
Tenn. R. Civ. P. 12.02(6). The court must construe the complaint in the
light most favorable to the nonmoving party and presume the pleadings to
be true. The motion only tests the legal sufficiency of the plaintiff’s
pleadings, not the strength of its proof. The motion contemplates that all
relevant and material allegations in the complaint, even if true and correct,
do not constitute a cause of action.
DISCUSSION
7. The DDLA provides a civil remedy for damages to persons in a
community injured as a result of illegal drug use. It enables injured persons
to recover damages, including attorney fees, from those persons in the
community who have joined the illegal drug market. Please see Tenn.
Code Ann. 29-38-102. The DDLA defines an “illegal drug market” as the
support system of illegal drug related operations, from production to retail
sales, through which an illegal drug reaches the user. The DDLA defines
an “illegal drug” as a drug, the distribution of which is a violation of state
law. Please see Tenn. Code Ann. 29-38-104.
8. The opioid medications the Manufacturer Defendants produce are legal
under federal and state law and are FDA approved. The Manufacturer
Defendants sell and distribute opioid medications to licensed distributors;
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those licensed distributors, not the Manufacturer Defendants, thereafter
control distribution of the medications. The Manufacturer Defendants and
licensed distributors are registered with the Drug Enforcement
Administration (DEA).
9. The plaintiffs are claiming that the Manufacturer Defendants distributed
“illegal drugs” and participated in an “illegal drug market” by selling more
opioid tablets than could be appropriately prescribed by doctors and by not
preventing third parties from illegally diverting or improperly prescribing
opioid medications. Although the original manufacturing and distribution
of opioid medication may have been legal, the plaintiffs argue by failing to
take necessary and appropriate steps to limit production and prevent
subsequent illegal distribution subjects the Manufacturing Defendants to
liability under the DDLA. In essence, the plaintiffs purport that the
Manufacturer Defendants have a duty to protect the plaintiffs from the
excess production of opioid medications and the criminal activity of other
unrelated actors.
CONCLUSION
10. As a matter of Tennessee law, it is legal for the Manufacturer
Defendants to make FDA-approved medications and sell them to DEA-
registered distributors. Please see Tenn. Code Ann. 53-11-303(d), 63-1-
154(a)(8). The Manufacturer Defendants have obligations to monitor and
report suspicious opioid medication orders to the DEA. Please see 21
C.F.R. 1301.74(b). (The court is unaware of any such reporting obligations
to counties or cities or anyone else.)
11. The Plaintiffs’ complaint, even if true and correct, is void of any
allegations showing that the Manufacturer Defendants distributed “illegal
drugs” or participated in an “illegal drug market” as defined in the DDLA.
The Manufacturer Defendants produced and distributed legal opioid
medications. The Court disagrees with the plaintiff’s assertion that because
of the Manufacturer Defendants’ business and marketing practices, the
otherwise legal production and distribution of opioid medications becomes
illegal by over producing and by the subsequent criminal conduct of other
unrelated actors. Pharmaceutical companies that manufacture FDA-
approved opioid medications and sell to DEA-licensed distributors are not
“drug dealers” as contemplated by the DDLA. In other words, the DDLA
does not apply to manufacturers who are legally producing and distributing
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opioid medications. Therefore, the Manufacturer Defendants’ Motion to
Dismiss is GRANTED.
12. Having already resolved in favor of the Manufacturer Defendants, it is
not necessary for the court to consider the remaining grounds to dismiss,
and the court declines to do so.
Plaintiffs timely appealed to this Court.
Discussion
Although not stated exactly as such, Plaintiffs raise the following single issue on
appeal: whether the Trial Court erred by granting Manufacturer Defendants’ motion to
dismiss for failure to state a claim. Manufacturer Defendants raise a separate additional
issue on appeal: whether the District Attorney Plaintiffs lack standing under the DDLA to
bring this suit without authorization from the counties, cities, and towns they purport to
represent. A number of organizations have filed amicus curiae briefs in support of
Plaintiffs.
The issues on appeal require us to interpret the DDLA. Our Supreme Court has
given guidance with regard to the interpretation of statutes, stating:
Statutory interpretation and the application of a statute to the facts of a case
involve questions of law and are reviewed under a de novo standard of
review with no presumption of correctness afforded to the trial court. Tenn.
Dep’t of Corr. v. Pressley, 528 S.W.3d 506, 512 (Tenn. 2017); Arden v.
Kozawa, 466 S.W.3d 758, 764 (Tenn. 2015). We thus independently
review the relevant provisions of the Charter without any deference to the
interpretations of the Commission or the trial court. See Pressley, 528
S.W.3d at 512.
The overriding purpose of a court in construing a statute is to
ascertain and effectuate the legislative intent, without either expanding or
contracting the statute’s intended scope. Ray v. Madison Cnty., Tenn., 536
S.W.3d 824, 831 (Tenn. 2017); Pressley, 528 S.W.3d at 512. Legislative
intent is first and foremost reflected in the language of the statute. Lee
Medical, Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). “We
presume that the Legislature intended each word in a statute to have a
specific purpose and meaning.” Arden, 466 S.W.3d at 764. The words
used in a statute are to be given their natural and ordinary meaning, and,
because “words are known by the company they keep,” we construe them
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in the context in which they appear and in light of the general purpose of
the statute. Lee Medical, 312 S.W.3d at 526; Ray, 536 S.W.3d at 831. “We
endeavor to construe statutes in a reasonable manner ‘which avoids
statutory conflict and provides for harmonious operation of the laws.’ ”
Ray, 536 S.W.3d at 831 (citation omitted). When a statute’s text is clear
and unambiguous, we need look no further than the language of the statute
itself. Lee Medical, 312 S.W.3d at 527. “We simply apply the plain
meaning without complicating the task.” Pressley, 528 S.W.3d at 513.
When, however, the language of a statute is ambiguous, we resort to
rules of statutory construction and external sources in order to ascertain and
give effect to the legislative intent. Lee Medical, 312 S.W.3d at 527; Ray,
536 S.W.3d at 832. These external sources may include the broader
statutory scheme, the history and purpose of the legislation, public policy,
historical facts preceding or contemporaneous with the enactment of the
statute, and legislative history. Lee Medical, 312 S.W.3d at 527-28; Ray,
536 S.W.3d at 831-32. The language of a statute is ambiguous when it is
subject to differing interpretations which yield contrary results. In re
Hogue, 286 S.W.3d 890, 894 (Tenn. 2009). “This proposition does not
mean that an ambiguity exists merely because the parties proffer different
interpretations of the statute. A party cannot create an ambiguity by
presenting a nonsensical or clearly erroneous interpretation of a statute.”
Powers v. State, 343 S.W.3d 36, 50 n. 20 (Tenn. 2011).
Wallace v. Metro. Gov’t of Nashville, 546 S.W.3d 47, 52-53 (Tenn. 2018) (footnotes
omitted). “[T]his Court traditionally gives a liberal construction to remedial statutes, so
long as the legislative intent is not disturbed and the result is not clearly contrary to the
language of the statutes . . . .” Lipscomb v. Doe, 32 S.W.3d 840, 847 (Tenn. 2000).
We first address Manufacturer Defendants’ issue of whether the District Attorney
Plaintiffs lack standing. Manufacturer Defendants point out that in a statutory list of
persons who may bring an action under the DDLA, district attorneys are conspicuously
absent. The DDLA states:
(a) One (1) or more of the following persons may bring an action for
damages caused by an individual’s use of an illegal drug:
(1) A parent, legal guardian, child, spouse, or sibling of the individual drug
user;
(2) An individual who was exposed to an illegal drug in utero;
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(3) An employer of the individual drug user;
(4) A medical facility, insurer, governmental entity, employer, or other
entity that funds a drug treatment program or employee assistance program
for the individual drug user, or that otherwise expended money on behalf of
the individual drug user; or
(5) A person injured as a result of the willful, reckless, or negligent actions
of an individual drug user.
Tenn. Code Ann. § 29-38-106(a) (2012).
Indeed, district attorneys are not mentioned. Elsewhere in the DDLA, however,
there is a provision that Plaintiffs cite in support of their contention that district attorneys
have standing to bring DDLA claims on behalf of the political subdivisions in their
respective judicial districts. This provision provides that “[a] prosecuting attorney may
represent the state or a political subdivision of the state in an action brought under this
chapter.” Tenn. Code Ann. § 29-38-116(a) (2012). There is no dispute that the District
Attorney Plaintiffs qualify as prosecuting attorneys, but their standing to sue is disputed
sharply. Manufacturer Defendants argue that Tenn. Code Ann. § 29-38-116(a) means
that the state or political subdivisions of the state may retain prosecuting attorneys to
represent them as counsel in a DDLA lawsuit, not that prosecuting attorneys may file
DDLA lawsuits on behalf of the state or political subdivisions on their own initiative.
According to Manufacturer Defendants, the District Attorney Plaintiffs lack the necessary
approval from their localities to bring this lawsuit, and, therefore, lack standing.
Related to this issue, Manufacturer Defendants have filed on appeal their “Motion
to Consider Post-Judgment Facts” and “Motion for Leave to File Reply Brief in Support
of Motion to Consider Post-Judgment Facts” in which they bring to our attention the
separate case of Staubus v. Purdue Pharma L.P., Case No. C-41916, a case brought by
another group of district attorneys. Manufacturer Defendants argue that a position taken
by plaintiffs in that case, that the district attorneys sue in their own right, sheds further
light on the wrongness of Plaintiffs’ position with respect to the District Attorney
Plaintiffs’ standing. In their response, Plaintiffs point out, among other things, that these
cases involve different plaintiffs and different local governments.
We agree with Plaintiffs that they are not bound by positions allegedly adopted by
different parties in another case. That information is immaterial to our consideration of
the issues and parties currently before us. Moreover, we do not even discern a real
contradiction in the positions taken. Finally, this is a matter of statutory construction. It
does not hinge on the positions of counsel. These filings by Manufacturer Defendants do
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not aid in resolving the issue of the District Attorney Plaintiffs’ standing or lack thereof.
We therefore deny Manufacturer Defendants’ “Motion to Consider Post-Judgment Facts”
and “Motion for Leave to File Reply Brief in Support of Motion to Consider Post-
Judgment Facts.”
Returning to standing, we observe that Tenn. Code Ann. § 29-38-116(a), which
enables prosecuting attorneys to “represent the state or a political subdivision of the state
in an action” brought under the DDLA, is amenable to competing interpretations. It
could mean, as Manufacturer Defendants insist, that prosecuting attorneys—such as the
District Attorney Plaintiffs—simply may be called upon to serve as counsel for “the state
or a political subdivision of the state . . . .” Under that interpretation, the District
Attorney Plaintiffs were not at liberty to exercise their own, independent discretion to file
this DDLA lawsuit on behalf of political subdivisions, and thus lack standing.
Plaintiffs’ interpretation also is viable, however. In Plaintiffs’ interpretation, to
“represent” means what it does when a district attorney represents the State in a criminal
matter. District attorneys do not obtain permission from other governmental officials
before initiating a criminal prosecution, for instance. They instead act on their own
discretion.
Both Plaintiffs and Manufacturer Defendants advance reasonable interpretations of
the statute. This being so, we must look to the broader purposes of the DDLA to resolve
the question. The legislative purpose of the DDLA is articulated as follows:
The purpose of this chapter is to provide a civil remedy for damages
to persons in a community injured as a result of illegal drug use. These
persons include parents, employers, insurers, governmental entities, and
others who pay for drug treatment or employee assistance programs, as well
as infants injured as a result of exposure to drugs in utero, referred to in this
chapter as “drug babies.” The chapter will enable injured persons to
recover damages from those persons in the community who have joined the
illegal drug market. A further purpose of the chapter is to shift, to the
extent possible, the cost of the damage caused by the existence of the illegal
drug market in a community to those who illegally profit from that market.
The further purpose of the chapter is to establish the prospect of substantial
monetary loss as a deterrent to those who have not yet entered into the
illegal drug distribution market. The further purpose is to establish an
incentive for drug users to identify and seek payment for their own drug
treatment from those dealers who have sold drugs to the user in the past.
Tenn. Code Ann. § 29-38-102 (2012).
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In construing a statute, we attempt to effectuate, rather than frustrate, its purpose
where possible. Construing Tenn. Code Ann. § 29-38-116(a) to mean merely that district
attorneys may be lawyers for the state or its political subdivisions would inhibit the
undisputed remedial aims of the DDLA. In this scenario, district attorneys would be
mere standby counsel for localities as opposed to independent parties fully empowered to
utilize the DDLA to deter entry into the illegal drug market and shift costs to the
beneficiaries of the illegal drug market. As Plaintiffs point out, district attorneys
regularly exercise their discretion to initiate criminal prosecutions without first obtaining
permission from any political leader.
We are unpersuaded by Manufacturer Defendants’ contention that the General
Assembly specially included this provision in the DDLA merely to let prosecuting
attorneys serve as lawyers to localities. The better interpretation to effectuate the
legislative intent of this remedial statute, which we adopt, is that district attorneys may
file DDLA claims on behalf of the political subdivisions within their respective judicial
districts. While both sides present reasonable interpretations of Tenn. Code Ann. § 29-
38-116(a), Plaintiffs’ interpretation is, in our judgment, far and away much more likely to
give effect to the legislative intent of the remedial purpose of the DDLA and “the
legislative intent is not disturbed and the result is not clearly contrary to the language of
the statutes . . . .” Lipscomb, 32 S.W.3d at 847. We hold that the District Attorney
Plaintiffs have standing.
The next and final issue we address is Plaintiffs’ issue of whether the Trial Court
erred by granting Manufacturer Defendants’ motion to dismiss. As our Supreme Court
has instructed:
Our review of a dismissal for failure to state a claim under Rule 12.02 of
the Tennessee Rules of Civil Procedure requires us to take the allegations in
the complaint as true. Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852,
857 (Tenn. 2002). This is because a motion filed under Rule 12.02(6) tests
“the legal sufficiency of the complaint, not the strength of the plaintiff’s
proof or evidence.” Webb v. Nashville Area Habitat for Humanity, Inc.,
346 S.W.3d 422, 426 (Tenn. 2011). By filing their motion to dismiss, the
defendants effectively “ ‘admit[ted] the truth of all of the relevant and
material allegations contained in the complaint, but ... assert[ed] that the
allegations fail to establish a cause of action.’ ” Freeman Indus., LLC v.
Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005) (quoting Leach v.
Taylor, 124 S.W.3d 87, 90 (Tenn. 2004)). As such, courts “should grant a
motion to dismiss only when it appears that the plaintiff can prove no set of
facts in support of the claim that would entitle the plaintiff to relief.”
Crews, 78 S.W.3d at 857. On appeal, we review the “trial court’s decision
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to dismiss a petition for failure to state a claim . . . de novo with no
presumption of correctness.” Metro. Gov’t of Nashville v. Bd. of Zoning
Appeals of Nashville, 477 S.W.3d 750, 754 (Tenn. 2015) (citing Doe v.
Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999)).
Nelson v. Myres, 545 S.W.3d 428, 430-31 (Tenn. 2018).
Manufacturer Defendants contend that the DDLA was intended to establish
liability for “street dealers,” not legal participants in a regulated marketplace such as
themselves. In response, Plaintiffs assert that the DDLA makes no distinction between
“street dealers” and drug manufacturers. For resolution, we look to the DDLA and other
pertinent law.
An illegal drug is defined in the DDLA as “a drug, the distribution of which is a
violation of state law.” Tenn. Code Ann. § 29-38-104(1) (2012). The DDLA includes a
category of “specified illegal drug” meaning “cocaine, heroin, or methamphetamine, or
any other drug the distribution of which is a violation of state law.” Tenn. Code Ann. §
29-38-104(14) (2012). The illegal drug market is defined as “the support system of
illegal drug related operations, from production to retail sales, through which an illegal
drug reaches the user.” Tenn. Code Ann. § 29-38-104(2) (2012). “A person who
knowingly participates in the illegal drug market within this state is liable for civil
damages as provided in this chapter . . . .” Tenn. Code Ann. § 29-38-105(a) (2012). The
DDLA defines a “person” as “individual, governmental entity, corporation, firm, trust,
partnership, or incorporated or unincorporated association, existing under or authorized
by the laws of this state, another state, or foreign country.” Tenn. Code Ann. § 29-38-
104(11) (2012). Participation in the illegal drug market means “to distribute, possess
with an intent to distribute, commit an act intended to facilitate the marketing or
distribution of, or agree to distribute, possess with an intent to distribute, or commit an
act intended to facilitate the marketing or distribution of an illegal drug . . . .” Tenn.
Code Ann. § 29-38-104(9) (2012). The drugs at issue in this case are classified by
Tennessee as Schedule II and include hydrocodone, hydromorphone, oxycodone, and
oxymorphone. See Tenn. Code Ann. § 39-17-408(b)(1)(F), (G), (M), & (N) (2018).
Schedule II drugs require, except when administered directly to a patient by a doctor, a
prescription from a healthcare provider in order to be dispensed lawfully. See Tenn.
Code Ann. § 53-11-308(a) (Supp. 2018).
No Tennessee case provides guidance on whether drug manufacturers may be
liable under the DDLA. Manufacturer Defendants point to three principal cases from
other jurisdictions in support of their position. In Schafer v. Shopko Stores, Inc., 741
N.W.2d 758, 762 (S.D. 2007), the South Dakota Supreme Court affirmed the grant of
summary judgment in favor of a pharmacy, finding that “[t]here is no evidence that the
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Legislature adopted the DDLA for any purpose other than to impose civil liability on
illegal drug dealers.” In Whittemore v. Owens Healthcare-Retail Pharmacy, Inc., 111
Cal. Rptr. 3d 227, 232 (3d Dist. 2010), a California appellate court affirming the
dismissal of a lawsuit held that, although a pharmacy’s employee could be liable, the
defendant pharmacies could not be liable because “they did not ‘knowingly’ participate in
the marketing of the drugs . . . .” Finally, in Cooper v. Purdue Frederick Company, Inc.,
No. 08-3757, 2008 WL 11355004, at *3 (E.D. La. Nov. 5, 2008), a federal court flat out
stated that “[t]he Louisiana Drug Dealer Act establishes ‘a cause of action against drug
dealers,’ not pharmaceutical companies.”
With respect to these cases from other jurisdictions, they are not binding on this
Court. The DDLA does not confine itself to “street drugs” or “street dealers.” What
matters under the DDLA is that a person, as defined in the Act, knowingly participates in
the illegal drug market. A “person” may be a corporate entity, and a drug’s legality
depends on the context—that is, whether it is prescribed, whether its sale or distribution
conforms to state law, etc. Manufacturer Defendants posit that, by definition, they cannot
be drug dealers under the DDLA. They point out that the drugs they produce are FDA-
approved and DEA-regulated. That, however, begs the question. Drug manufacturers
cannot, as is alleged here, knowingly seek out suspect doctors and pharmacies,
oversupply them with opioids for the purpose of diversion, benefit from the process, and
then cynically invoke their status as otherwise lawful companies to avoid civil liability.
The common perception of a drug dealer may be that of the street dealer, but the DDLA
does not make that distinction.
We acknowledge that, in conformity with state and federal law, the manufacture of
opioids is a legitimate endeavor. There are perfectly sound medical applications for these
drugs. Our interpretation of the DDLA is not that drug manufacturers are liable every
time one of their products is misused by a third party. We do, however, reject the view
that a drug manufacturer can never be liable under the DDLA even when it knowingly
exceeds the boundaries of its regulated framework, as is alleged here. We find no
support in the DDLA for Manufacturer Defendants’ contention that they are exempt from
the Act.
Having determined that drug manufacturers may be liable under the DDLA, we
now need determine whether Plaintiffs’ complaint is sufficient to survive Manufacturer
Defendants’ motion to dismiss. We are required to accept Plaintiffs’ allegations as true at
this stage. Plaintiffs’ 100-plus page Third Amended Complaint contains a litany of
allegations, some highly specific, as to Manufacturer Defendants’ activities with regard
to the diversion of opioids in Tennessee, as well as the destruction in communities caused
by this diversion. If Plaintiffs’ allegations are correct, as, again, we must presume them
to be at this motion to dismiss stage, Manufacturer Defendants knowingly flooded the
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affected areas with drugs they knew were to be diverted. Plaintiffs do not allege that
these events occurred simply as a result of neglect. For example, Plaintiffs allege that
Manufacturer Defendants actively identified suspect pharmacies to provide with opioids.
According to Plaintiffs, Manufacturer Defendants knew about the whole sequence and
actively enabled it from the top down for the sake of profit. Manufacturer Defendants are
alleged to have knowingly participated in the illegal drug market in Tennessee. That is
the basis for civil liability under the DDLA whether one’s headquarters is an office
building or a back alley.
Whether Plaintiffs can prove their allegations against Manufacturer Defendants is
another matter entirely. We take no position on that. We hold only that Plaintiffs alleged
enough in their Third Amended Complaint to survive Manufacturer Defendants’ motion
to dismiss for failure to state a claim. Manufacturer Defendants did not meet their burden
at this motion to dismiss stage of showing “ ‘that the plaintiff[s] can prove no set of facts
in support of the claim that would entitle the plaintiff[s] to relief.’ ” Nelson, 545 S.W.3d
at 431 (quoting Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)).
We reverse the judgment of the Trial Court, and remand for this case to proceed.
Conclusion
The judgment of the Trial Court is reversed, and this cause is remanded to the
Trial Court for collection of the costs below and for further proceedings consistent with
this Opinion. The costs on appeal are assessed against the Appellees, Endo Health
Solutions, Inc., Endo Pharmaceuticals, Inc., Purdue Pharma, L.P., Purdue Pharma, Inc.,
The Purdue Frederick Company, Inc., Mallinckrodt LLC, and Teva Pharmaceuticals
USA, Inc.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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