Ex parte McKesson Corporation PETITION FOR WRIT OF MANDAMUS (In re: Fort Payne Hospital Corporation v. McKesson Corporation) (Conecuh Circuit Court: CV-21-900016).

Rel: December 22, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0289

_________________________

Ex parte McKesson Corporation et al.

PETITION FOR WRIT OF MANDAMUS

(In re: Fort Payne Hospital Corporation et al.

v.

McKesson Corporation et al.)

(Conecuh Circuit Court: CV-21-900016)

PER CURIAM.

The petitioners -- McKesson Corporation, AmerisourceBergen Drug

Corporation, Cardinal Health, Inc., H.D. Smith, LLC, and Henry Schein,

Inc. -- petition this Court for a writ of mandamus directing the Conecuh

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Circuit Court to vacate its March 20, 2023, order denying their motion to

dismiss the claims asserted against them by the plaintiffs -- Fort Payne

Hospital Corporation, the Bibb County Healthcare Authority, the Dale

County Health Care Authority, Greene County Hospital Board, Jackson

Hospital & Clinic, Inc., Escambia County Alabama Community

Hospitals, Inc., Mizell Memorial Hospital, Inc., the Tombigbee Health

Care Authority, Geneva County Health Care Authority, Community

Hospital, Inc., the Sylacauga Health Care Authority, Russellville

Hospital, Inc., Lakeland Community Hospital, Inc., Monroe County

Healthcare Authority, Infirmary Health Hospitals, Inc., Gulf Health

Hospitals, Inc., Mobile Infirmary Association, the DCH Health Care

Authority, the Healthcare Authority for Baptist Health, Medical West

Hospital Authority, Evergreen Medical Center, LLC, Gilliard Health

Services, Inc., Crestwood Healthcare, L.P., Triad of Alabama, LLC, QHG

of Enterprise, Inc., Affinity Hospital, LLC, Gadsden Regional Medical

Center, LLC, Foley Hospital Corporation, the Health Care Authority of

Clarke County, BBH PBMC, LLC, BBH WBMC, LLC, BBH SBMC, LLC,

BBH CBMC, LLC, and BBH BMC, LLC -- and to enter an order

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dismissing the plaintiffs' claims with prejudice on the ground that those

claims are barred by the applicable statutes of limitations.

Facts and Procedural History

"Because this petition concerns a motion to dismiss

under Rule 12(b)(6), Ala. R. Civ. P., the facts in the complaint

constitute the only operative facts for our review of the

petition. See, e.g., Ex parte Alabama Dep't of Youth Servs.,

880 So. 2d 393, 397 (Ala. 2003) ('Inasmuch as the issue before

us is whether the trial court correctly denied a Rule 12(b)(6),

Ala. R. Civ. P., motion to dismiss, "[t]his Court must accept

the allegations of the complaint as true." ' (quoting Creola

Land Dev., Inc. v. Bentbrooke Hous., L.L.C., 828 So. 2d 285,

288 (Ala. 2002)))."

Ex parte Abbott Lab'ys, 342 So. 3d 186, 188 (Ala. 2021) (footnote omitted).

The plaintiffs are 34 entities that own or operate hospitals in

Alabama. On March 26, 2021, the plaintiffs commenced this action in

the Conecuh Circuit Court against various manufacturers of prescription

opioids ("the manufacturing defendants"), various distributors of

prescription opioids ("the distributor defendants"), and various retail

pharmacies ("the pharmacy defendants") (collectively referred to as "the

defendants"). The distributor defendants included AmerisourceBergen

Drug Corporation, Anda, Inc., Cardinal Health, Inc., H.D. Smith, LLC,

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Henry Schein, Inc., and McKesson Corporation.1 In their initial

complaint, the plaintiffs alleged, in pertinent part:

"1. Plaintiffs operate hospitals that provide acute care

throughout Alabama including treatment for opioid-

dependent patients suffering from opioid-related conditions.

These patients routinely seek services at Plaintiffs'

emergency rooms and occupy beds in the Plaintiffs' Hospitals.

Hospitals are legally and morally compelled to act and treat

all of these patients, regardless of the price.

"2. Defendants are the manufacturers, distributors, and

dispensers of prescription opioids. By flooding Plaintiffs'

communities with opioids, by pushing false narratives

surrounding the safety of opioids, and by failing to take steps

to prevent diversion of opioids, they have created an epidemic

of misuse, abuse, addiction, and death."

(Footnote omitted.) The plaintiffs also alleged that "[t]he average cost of

providing care for patients diagnosed with opioid use disorder is eight

times higher than for those without opioid use disorder"; that those

patients must still be provided with complete care; and that "private and

government insurance does not cover these increased costs." (Footnote

omitted.) In their initial complaint, the plaintiffs further alleged that the

opioid pandemic constituted a continuous and abatable public nuisance.

1Although Anda was initially a party to this mandamus petition, it

filed a motion to withdraw as a petitioner on July 11, 2023. On July 19,

2023, this Court granted Anda's motion. Therefore, we have omitted any

specific allegations relating to Anda.

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The plaintiffs stated claims of negligence, wantonness, public nuisance,

unjust enrichment, fraud and deceit, and civil conspiracy.

On September 8, 2022, the pharmacy defendants filed a motion to

dismiss the plaintiffs' claims against them pursuant to Rule 12(b)(6), Ala.

R. Civ. P., which the trial court denied. The pharmacy defendants

subsequently filed a petition for a writ of mandamus in this Court, which

was docketed as case number 1210329. This Court ordered answers and

briefs. However, the plaintiffs subsequently filed a motion to dismiss the

pharmacy defendants' petition as moot. In their motion to dismiss, they

asserted that they had filed a motion to dismiss their claims against the

pharmacy defendants and that the trial court had granted that motion.

On April 26, 2022, this Court granted the plaintiffs' motion and dismissed

the petition in case number 1210329.

On September 27, 2022, the plaintiffs filed their amended

complaint against the manufacturing defendants and the distributor

defendants (collectively referred to as "the remaining defendants"). In

their amended petition, the plaintiffs restated the allegations quoted

above from the initial complaint and alleged that the actions of the

remaining defendants had created an opioid epidemic and that, "[in]

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addition to the cost of the opioid drugs themselves, the opioid epidemic

has caused hospitals to incur and continue to suffer an extensive

operational impact on their ability to do their jobs -- rendering care to all

members of the communities they serve." In their amended complaint,

they stated claims of negligence, wantonness, public nuisance, unjust

enrichment, fraud and deceit, and civil conspiracy against the remaining

defendants. In the section of the amended complaint setting forth the

parties, the plaintiffs included the following factual allegations regarding

the distributor defendants:

"2. Distributor Defendants

"107. The Distributor Defendants are described below.

At all relevant times, the Distributor Defendants have

distributed, supplied, sold, and placed into the stream of

commerce prescription opioids, without fulfilling the

fundamental duty of wholesale drug distributors to detect and

prevent diversion of dangerous drugs for non-medical

purposes. The Distributor Defendants universally failed to

comply with Alabama law, under which they are 'wholesaler

distributors.' Plaintiffs allege that the Distributor

Defendants' unlawful conduct is a substantial cause of the

volume of prescription opioids plaguing Plaintiffs'

communities.

"a. AmerisourceBergen

"108. Defendant AmerisourceBergen Drug Corporation

(“AmerisourceBergen”) is a Delaware corporation with its

principal place of business in Chesterbrook, Pennsylvania.

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"109. AmerisourceBergen is a wholesaler of

pharmaceutical drugs and distributes opioids throughout the

country, including in Alabama. AmerisourceBergen is the

eleventh largest company by revenue in the United States,

with annual revenue of $147 billion in 2016.

"110. According to its 2016 annual report,

AmerisourceBergen is 'one of the largest global

pharmaceutical sourcing and distribution services companies,

helping both healthcare providers and pharmaceutical and

biotech manufacturers improve patient access to products and

enhance patient care.'

"111. Between 2006 and 2014, AmerisourceBergen

distributed the second highest number of hydrocodone and

oxycodone pills into Alabama and into Conecuh County. It

distributed 282,139,350 pills into the state, 2,982,040 of which

went to Conecuh County. Although the ARCOS [Automated

Reports and Consolidated Ordering System] data from which

this information is drawn has only been made publicly

available through 2014, AmerisourceBergen continues to

distribute prescription opioids into Alabama to the present

day.

"112. AmerisourceBergen currently holds a Wholesale

Distributor license from the Alabama Board of Pharmacy as

well as a license to distribute controlled substances in

Alabama. It continues to use this license to distribute

pharmaceuticals, including controlled substances, into

Alabama.

"113. As described in this complaint,

AmerisourceBergen has had multiple instances in which it

has inappropriately distributed controlled substances. From

this pattern of instances, it can be inferred that

AmerisourceBergen's policies and procedures have failed to

adapt and change in order to prevent the future diversion of

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prescription opioids. On that basis, Plaintiffs allege on

information and belief that AmerisourceBergen continues to

operate in ways that enable the diversion of prescription

opioids.

"114. On July 26, 2021, [AmerisourceBergen] paid a

$5,000 fine to the Alabama Board of Pharmacy for violations

arising out of its 2019 conduct in Florida of distributing

prescription drugs, including controlled substances, without a

proper license to do so.

"115. [AmerisourceBergen] continues to make false or

misleading statements about its involvement in the

promotion of prescription opioids and its contribution to the

ongoing opioid epidemic. [AmerisourceBergen] falsely claims

on its website that it 'take[s] no action whatsoever to promote

prescribing or otherwise increase demand for opioids.'

"….

"c. Cardinal

"121. Defendant Cardinal Health, Inc. ('Cardinal') is an

Ohio corporation with its principal place of business in

Dublin, Ohio. In 2016, Cardinal generated revenues of

$121.5 billion.

"122. Cardinal is a global distributor of pharmaceutical

drugs and medical products. It is one of the largest

distributors of opioids in the United States. From 2006 to

2014, Cardinal was the third largest distributor of opioids in

Alabama.

"123. In December 2013, Cardinal formed a ten-year

agreement with CVS Caremark to form the largest generic

drug sourcing operation in the United States.

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"124. Cardinal currently holds a Wholesale Distributor

license from the Alabama Board of Pharmacy as well as a

license to distribute controlled substances in Alabama. It

continues to use this license to distribute pharmaceuticals,

including controlled substances, into Alabama.

"125. As described in this complaint, Cardinal has had

multiple instances in which it has inappropriately distributed

controlled substances. From this pattern of instances, it can

be inferred that Cardinal's policies and procedures have failed

to adapt and change in order to prevent the future diversion

of prescriptive opioids. On that basis, Plaintiffs allege on

information and belief that Cardinal continues to operate in

ways that enable the diversion of prescription opioids.

"d. H.D. Smith

"126. Defendant H.D. Smith, LLC f/k/a H.D. Smith

Wholesale Drug Co. ('H.D. Smith') through its various DEA

[Drug Enforcement Administration]-registered subsidiaries

and affiliated entities, is a wholesaler of pharmaceutical

drugs that distributes opioids throughout the United States,

including in Alabama and the communities served by

Plaintiffs. H.D. Smith is a privately held independent

pharmaceuticals distributor of wholesale brand, generic, and

specialty pharmaceuticals and is a Delaware corporation with

its principal place of business in Illinois. H.D. Smith

Wholesale Drug Co. has been restructured and is currently

doing business as H.D. Smith, LLC. H.D. Smith, LLC's sole

member is H.D. Smith Holdings, LLC, and its sole member is

H.D. Smith Holding Company, a Delaware corporation with

its principal place of business in Illinois. H.D. Smith is the

largest independent wholesaler in the United States. In

January 2018, Defendant AmerisourceBergen acquired H.D.

Smith.

"127. Prior to its acquisition by AmerisourceBergen and

at least through March 29, 2019, H.D. Smith held a Wholesale

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Distributor license from the Alabama Board of Pharmacy as

well as a license to distribute controlled substances in

Alabama. It used this license to distribute pharmaceuticals,

including controlled substances, into Alabama.

"128. In 2016, H.D. Smith entered into a settlement with

West Virginia, agreeing to pay $3.5 million to resolve an

action alleging that the company contributed to the state's

opioid addiction epidemic by negligently distributing opioids.

"129. H.D. Smith's shipments to West Virginia were so

extensive that the [United States] House [of Representatives']

Energy and Commerce Committee wrote to H.D. Smith in

2018, citing DEA data showing 2008 sales of 1.1 million

hydrocodone doses to Family Discount Pharmacy in Mount

Gay-Shamrock, a West Virginia town home to only 1,800

people. That same year, H.D. Smith sold more than 1.3

million hydrocodone and oxycodone to a Sav-Rite Pharmacy

in Kermit, West Virginia, a town with a population of 406.

Between 2007 and 2008, H.D. Smith also sold 5 million

hydrocodone pills to pharmacies in Williamson, West

Virginia, where approximately 3,000 people lived.

Representatives from both parties were concerned about the

volume of opioids H.D. Smith was distributing to West

Virginia: 'Data provided to the committee by the Drug

Enforcement Administration raises ... questions regarding

H.D. Smith's efforts to monitor for, and mitigate, controlled

substance diversion in West Virginia.'

"130. In 2019, in the MDL [multidistrict-litigation]

proceeding styled In re: National Prescription Opiate

Litigation, H.D. Smith and certain other smaller distributors

filed a motion for summary judgment styled 'Non-RICO Small

Distributors' Motion for Summary Judgment Based on their

De Minimis Status (DKT # 1879).' In opposing the motion,

the factual record presented by the plaintiffs (two Ohio

municipalities) relating to H.D. Smith consisted of a subset of

the information enumerated in this Complaint. The MDL

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court denied the motion for summary judgment as to all of the

moving defendants, including H.D. Smith.

"131. H.D. Smith executives were active in industry

groups such as HDA [the Healthcare Distribution Alliance],

HDMA [the Healthcare Distribution Management

Association], and PCF [the Pain Care Forum] (via HDA's

membership).

"132. J. Christopher Smith, while President and COO,

was an active member of HDMA, serving as Co-Chair of its

Industry Relations Counsel. Ron Lanton, Government Affairs

Counsel, was a member of HDMA's Government and Public

Policy Counsel. Thomas Doyle, Executive Vice President,

Commercial Solutions, was part of HDMA's Specialty &

Biotech Distributors Council. Dale Smith, President of H.D.

Smith, appears to be an active member of HDA. On HDA's

website, he is identified as HDA Vice Chairman and was

Chairman and CEO of HAD's Board of Directors and

Executive Committee (as of Nov. 2015), having also served on

HDA's Government and Public Policy Council and Industry

Relations Council. Dale Smith, President of H.D. Smith, was

Vice Chairman, Chairman, and CEO of HDA's Board of

Directors and Executive Committee, and also served on

HDA's Government and Public Policy Council and Industry

Relations Council.

"133. When distributing prescription opioids, H.D.

Smith had a duty to prevent diversion by implementing an

effective system to detect and halt suspicious orders and by

conducting regular investigations of current and prospective

customers. But H.D. Smith's policies and procedures for

monitoring pharmaceutical orders have long been

insufficient, which has allowed opioid diversion in Maine for

an extensive period of time.

"134. From 2006 to 2008, H.D. Smith's SOM [suspicious-

order-monitoring] program was manual, rather than

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automated. H.D. Smith had two undated and little-used

written policies covering suspicious order monitoring. Few

employees of H.D. Smith knew these policies existed.

"135. Starting in 2006, H.D. Smith began working on an

automated compliance system, but this 'system' was never

really a viable automated system, just iterations and

attempts.

"136. In or around 2008, H.D. Smith began developing a

computer-based suspicious-order-monitoring program, which

H.D. Smith called 'CSOMP.' CSOMP had multiple flaws that

undermined its purpose of detecting and reporting suspicious

orders.

"137. First, H.D. Smith's suspicious-order-monitoring

reports, which might have identified suspicious orders, were

not reviewed until after the flagged orders had been shipped.

"138. Second, CSOMP did not consider opioid order

pattern or frequency. H.D. Smith's SOM program permitted

automated release of any and all orders by new pharmacies

during a 90- to 120-day period, allowing them to 'ramp up,'

even when they exceeded order volume limits.

"For instance, in a May 21, 2008 internal email, George

Euson ('Euson'), Director of Corporate Security, wrote to H.D.

Smith employees regarding CSOMP enhancements: 'You are

allowed to release all orders that show up in the system for

new accounts for up to 120 days after the start date listed.

This will allow ramp up of new accounts.' When opioid orders

neared threshold limits, the orders were still released without

further investigation or reporting, allowing the customer to

build a high-volume-sales 'history.' In fact, in order to avoid

reporting a suspicious order to the DEA, H.D. Smith would

notify customers when they approached their threshold

limits, allowing customers to request threshold increases and

avoid triggering thresholds. Additionally, those thresholds

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for reporting were based on the client's prior sales. So, if a

client spent more, their limit could be reset to that higher

point.

"139. Issues with CSOMP requiring modifications and

fixes to address broken functionality continued until at least

February 2015. These issues included stopping only one large

controlled drug order at a time for review, while allowing a

smaller order for the same customer to be filled while larger

order was being reviewed; allowing 448 people within H.D.

Smith to release holds in CSOMP; having a lack of tools to

detect orders of unusual frequency or pattern; and having

multiple accounts assigned to one customer or DEA number,

each of which was assigned thresholds (i.e., 3 accounts; 3x the

threshold limit for that customer).

"140. H.D. Smith was aware of deficiencies with its

SOM, and management deliberately tried to hide this

knowledge.

"141. An H.D. Smith employee with responsibilities for

CSOMP monitoring who resigned in February 2015 explained

her concerns with H.D. Smith's SOM system in her exit

interview. At the time of the interview, Lori Kirbach stated

as a main reason for leaving, 'the company is and has been

breaking the law for some time.' She did not understand why

this was being tolerated. Specifically, Ms. Kirbach stated that

'CSOMP has not been working correctly since OPUS Go Live

and that no one will listen to them when they bring it up.

Compliance is releasing orders that they should not be

releasing.' She added that the 'DEA is about two years behind

in looking at CSOMP data and it[']s only a matter of time

before they catch up to us and questions are asked.' Ms.

Kirbach also added that her manager 'often said not to put

certain issues (such as the CSOMP issue) in email so in the

event the company is ever sued and the email is produced'

other employees could 'deny any knowledge.' She recalled

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getting her 'ass chewed' by her manager, Tom, for putting

something in an email that he thought she shouldn't have.

"142. Other H.D. Smith employees have also admitted

its SOM program was insufficient. For example, Euson wrote

an email on September 28, 2007 regarding a list of suspicious

pharmacies he had circulated internally in February 2006 and

an updated list of suspicious pharmacies in May 2007. The

listed pharmacies had been identified as suspicious by other

wholesalers and the DEA due to 'excess purchases of

controlled substances.' Two of the DEA's suspicious

pharmacies had also been identified by H.D. Smith as one of

nine pharmacy customers comprising 80% of H.D. Smith's

Florida distribution of oxycodone. One, Pharmcore, was a

customer at the time of the February 2006 email. The other,

Pharmacy Express, was set up as a customer in December

2006. According to Euson: 'Both have huge and excessive

amounts of controlled substance purchases.' He continued,

'We will have a hard time explaining to DEA why after we

were warned nearly 1 1/2 years ago, we continued to sell

excessive quantities of CS [controlled substances] to these

businesses.'

"143. Another H.D. Smith employee, P.J.

VanderMeersch, Compliance Specialist, wrote in September

2013 about her serious concerns with H.D. Smith's CSOMP:

'we are absolutely not compliant with Federal Regulations

and we know we aren't.'

"144. As recently as 2014, in a PowerPoint presentation

regarding Compliance and Security, the Compliance

Department noted the need to develop CSOMP enhancements

to meet DEA standards.

"145. An H.D. Smith employee wrote an email in July

2014 noting that CSOMP program issues had 'resulted in

customers receiving products which they were not supposed

to.' As a result of these shortfalls, H.D. Smith shipped 17

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bottles of oxycodone to one customer who was not supposed to

be able to order any.

"146. In or around 2014, H.D. Smith hired a new

compliance officer and began to create an improved CSOMP

program that would comply with applicable laws. However,

before any enhancements went into effect, that new

compliance officer was terminated in 2016.

"147. On May 31, 2016, H.D. Smith rehired their former

Vice President of Compliance.

"148. At a May 8, 2018 hearing before the House Energy

and Commerce subcommittee, H.D. Smith refused to take any

responsibility for the massive amounts of opioids it shipped to

West Virginia, the state which at the time had the highest

overdose rate in the United States. At this time, J.

Christopher Smith, former President and CEO, stated, 'H.D.

Smith conducted itself responsibly and discharged its

obligations.'

"149. The implication that H.D. Smith has effectively

addressed diversion is false, as H.D. Smith's repeated

payments to settle diversion-related violations indicate.

"150. H.D. Smith's public statements misled the public,

including Plaintiffs, into believing that H.D. Smith was

taking effective steps to fight the opioid epidemic.

"151. Although Plaintiffs allege the dates of particular

enforcement actions and other admissions or evidence of

failures to prevent diversion, Plaintiffs do not allege that H.D.

Smith ceased conduct that contributed to the opioid epidemic

upon the last date of such an action, admission, or evidence.

"152. The fact that H.D. Smith had a pattern of

violations resulting in a series of enforcement actions and a

pattern of conduct evincing a failure to devise effective

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procedures according with its role as a distributor of

controlled substances provides grounds to infer that despite

its promises to improve its policies and procedures so as to

prevent the diversion of prescriptions opioids (and so

contributing to the opioid epidemic in Alabama), H.D. Smith

failed to do so and, in fact, on information and belief,

continues to operate in ways that enable the diversion of

prescription opioids.

"e. Henry Schein

"153. Defendant Henry Schein, Inc. ('Henry Schein') is

incorporated in Delaware with its principal place of business

located in Melville, New York.

"154. Henry Schein describes its business as providing

products and services to integrated health systems in the non-

acute care space and distributes, among other things, branded

and generic pharmaceuticals to customers that include dental

practitioners, dental laboratories, animal health practices

and clinics, office-based medical practitioners, and

ambulatory surgery centers. Overall, it is the world's largest

provider of health care products and services to office-based

dental, animal health, and medical practitioners.

"155. Henry Schein currently holds a Wholesale

Distributor license from the Alabama Board of Pharmacy as

well as a license to distribute controlled substances in

Alabama. It continues to use this license to distribute

pharmaceuticals, including controlled substances, into

Alabama.

"156. As described in this complaint, Henry Schein has

had multiple instances in which it has inappropriately

distributed controlled substances. From this pattern of

instances, it can be inferred that Henry Schein's policies and

procedures have failed to adapt and change in order to

prevent the future diversion of prescription opioids. On that

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basis, Plaintiffs allege on information and belief that Henry

Schein continues to operate in ways that enable the diversion

of prescription opioids.

"f. McKesson

"157. Defendant McKesson Corporation ('McKesson') is

a Delaware corporation with its principal place of business in

Irving, Texas.

"158. McKesson is the largest pharmaceutical

distributor in North America. McKesson distributes

approximately one-third of all pharmaceuticals used in North

America. At all times relevant to this Complaint, McKesson

distributed prescription opioids throughout the United

States, including in Alabama.

"159. From 2006 to 2014, McKesson was the largest

distributor of oxycodone and hydrocodone in Alabama.

McKesson continues to distribute products, including

controlled substances, to customers within the State of

Alabama. McKesson currently holds an active license from

the Alabama Board of Pharmacy to distribute controlled

substances in Alabama.

"160. In its 2018 annual report, McKesson stated that it

'partner[s] with [pharmaceutical] manufacturers, providers,

pharmacies, governments and other organizations in

healthcare to help provide the right medicines, medical

products and healthcare services to the right patients at the

right time, safely and cost-effectively.'

"161. As described in this complaint, McKesson has had

multiple instances in which it has inappropriately distributed

controlled substances. From this pattern of instances, it can

be inferred that McKesson's policies and procedures have

failed to adapt and change in order to prevent the future

diversion of prescription opioids. On that basis, Plaintiffs

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allege on information and belief that McKesson continues to

operate in ways that enable the diversion of prescription

opioids.

"162. Collectively, McKesson, AmerisourceBergen, and

Cardinal account for 85% of drug shipments in the United

States and take in about $400 billion in annual revenue.

"163. Cardinal, Anda, H.D. Smith, Henry Schein,

AmerisourceBergen, and McKesson are collectively referred

to as the 'Distributor Defendants' or the 'Supply Chain

Defendants.' "

(Emphasis added; footnotes omitted.)

Additionally, in their factual allegations, the plaintiffs asserted

that the distributor defendants "have and have breached duties to guard

against, prevent, and report suspicious orders and unlawful diversion" of

opioids. They also asserted that the distributor defendants have "worked

together to achieve their common purpose through trade or other

organizations, such as the Pain Care Forum and the Healthcare

Distribution Alliance." They further asserted that the distributor

defendants "were aware of and have acknowledged their obligations to

prevent diversion and report and take steps to halt suspicious orders";

that the distributor defendants "kept careful track of prescribing data

and knew about suspicious orders and prescribers"; and that the

distributor defendants "failed to report suspicious orders or otherwise act

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to prevent diversion." After discussing conduct that goes back many

years, the plaintiffs stated:

"876. Defendants have admitted to disregarding their

duties. They have admitted that they pumped massive

quantities of opioids into communities around the country

despite their obligations to control supply, prevent diversion,

and report and take steps to halt suspicious orders.

"877. On the basis of this pattern of misconduct,

Plaintiffs allege that, despite these enforcement activities and

despite their promises to improve their policies and

procedures so as to prevent the diversion of prescription

opioids (and so contributing to the opioid epidemic in

Alabama), Defendants have failed to do so and, in fact, on

information and belief, continue to operate in ways that

enable the diversion of prescription opioids."

The plaintiffs further asserted that the distributor defendants "delayed

a response to the opioid crisis by pretending to cooperate with law

enforcement"; that the distributor defendants unlawfully distributed

opioids; that the distributor defendants breached their duties; and that

each of the distributor defendants have engaged in wrongful conduct.

With regard to Cardinal, the plaintiffs alleged that "Cardinal's

flawed written policies enabled opioid diversion"; that Cardinal failed to

effectively prevent diversion in practice; and that Cardinal had been put

on notice of its wrongful conduct. They further alleged:

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"976. From this pattern of misconduct and Cardinal's

evident refusal to adopt policies and procedures that would

effectively prevent diversion -- despite promising to do so,

Plaintiffs allege that Cardinal has continued to engage in

conduct contributing to the opioid epidemic in Alabama by

distributing opioids under circumstances suggestive of

potential diversion."

With regard to AmerisourceBergen, the plaintiffs alleged that

"AmerisourceBergen's flawed written policies enabled opioid diversion";

that AmerisourceBergen failed to effectively prevent diversion in

practice; and that AmerisourceBergen had been put on notice of its

wrongful conduct. They further alleged:

"990. AmerisourceBergen continues to distribute opioids

into Alabama and, on information and belief, continues to

distribute them under circumstances suggestive of potential

diversion."

With regard to H.D. Smith, the plaintiffs alleged:

"1000. H.D. Smith was the seventh largest distributor of

opioids in Alabama during this time period. H.D. Smith's

excessive distribution was made possible by, and is evidence

of, H.D. Smith's failure to comply with its duties under state

and federal law.

"1001. As described elsewhere in this Complaint,

Plaintiffs allege based on H.D. Smith's pattern of misconduct

that it engaged in activities contributing to the opioid

epidemic within the relevant limitations period."

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With regard to Henry Schein, the plaintiffs alleged that "Henry

Schein continues to distribute controlled substances into Alabama." They

further included allegations regarding "Henry Schein's inadequate SOM

program."

With regard to McKesson, the plaintiffs alleged:

"1011. In May 2008, McKesson entered into a settlement

agreement with the DEA to settle claims that McKesson had

failed to maintain effective controls against diversion of

controlled substances in Florida, Maryland, Colorado, Texas,

Utah, and California (the '2008 McKesson Settlement

Agreement').

"1012. In the 2008 McKesson Settlement Agreement,

McKesson 'recognized that it had a duty to monitor its sales

of all controlled substances and report suspicious orders to

DEA.' McKesson agreed to 'maintain a compliance program

designed to detect and prevent the diversion of controlled

substances, inform DEA of suspicious orders ... and follow the

procedures established by its Controlled Substance

Monitoring Program.' But McKesson failed to do so. It was

later revealed that McKesson's system for detecting

'suspicious orders' from pharmacies was so ineffective and

dysfunctional that, in a five-year period, it filled more than

1.6 million orders, but reported just 16 orders as suspicious --

all from a single consumer.

"1013. In January 2017, McKesson admitted to its

ongoing breach of its duties to monitor, report, and prevent

suspicious orders of oxycodone and hydrocodone by entering

into a Settlement Agreement and Release with the DEA and

the DOJ [Department of Justice] (the 'the 2017 McKesson

Settlement Agreement').

21

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"1014. In the 2017 McKesson Settlement Agreement,

McKesson admitted that, between January 1, 2009 and

January 17, 2017, it 'did not identify or report to DEA certain

orders placed by certain pharmacies which should have been

detected by McKesson as suspicious based on the guidance

contained in the DEA Letters.' Despite its obligations under

the 2008 Settlement Agreement, McKesson still 'failed to

properly monitor its sales of controlled substances and/or

report suspicious orders to DEA, in accordance with

McKesson's obligations under the 2008 Agreements, the CSA

[Controlled Substances Act], and 21 C.F.R. § 1301.74(b).'

"1015. In the 2017 McKesson Settlement Agreement,

McKesson further admitted that it had 'distributed controlled

substances to pharmacies even though those [McKesson]

Distribution Centers should have known that the

pharmacists practicing within those pharmacies had failed to

fulfill their corresponding responsibility to ensure that

controlled substances were dispensed pursuant to

prescriptions issued for legitimate medical purposes by

practitioners acting in the usual course of their professional

practice, as required by 21 C.F.R. § 1306.04(a).' McKesson

admitted that it had 'failed to maintain effective controls

against diversion of particular controlled substances into

other than legitimate medical scientific and industrial

channels by sales to certain of its customers in violation of the

CSA and the CSA's implementing regulations.'

"1016. As part of the 2017 McKesson Settlement

Agreement, McKesson agreed that its authority to distribute

controlled substances from 12 distribution centers would be

partially suspended for several years. The overall sanctions

included in the 2017 Settlement Agreement were the most

severe ever imposed on a DEA-registered distributor.

"1017. According to the Washington Post and 60

Minutes, DEA staff recommended a much larger penalty than

the $150 million ultimately agreed to -- as much as a billion

22

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dollars -- and delicensing of certain facilities. A DEA memo

outlining the investigative findings in connection with the

administrative case against 12 McKesson distribution centers

included in the 2017 Settlement stated that McKesson

'[s]upplied controlled substances in support of criminal

diversion activities'; '[i]gnored blatant diversion'; had a

'[p]attern of raising thresholds arbitrarily'; '[f]ailed to review

orders or suspicious activity'; and '[i]gnored [the company’s]

own procedures designed to prevent diversion.' "

(Footnotes omitted.) The amended complaint also alleged that the

distributor defendants "have sought to and have misrepresented their

compliance with their legal duties" and that "repeated admonishments

and fines did not stop the distributor defendants from ignoring their

obligations to control the supply chain and prevent diversion."

In their "additional allegations pertaining to punitive damages,"

the plaintiffs asserted:

"1033. Each Defendant knew that large and suspicious

quantities of opioids were being poured into communities

throughout the United States. Despite this knowledge,

Defendants took either no steps or utterly inadequate steps to

report suspicious orders, control the supply of opioids, or

otherwise prevent diversion. Indeed, as described above,

Defendants acted in concert to maintain high quotas for their

products and to ensure that suspicious orders would not be

reported to regulators.

"1034. Defendants' conduct was so willful and deliberate

that it continued in the face of numerous enforcement actions,

fines, and other warnings from federal and state governments

and regulatory agencies. Defendants paid their fines, made

23

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promises to do better, and continued on with their marketing

and supply schemes. This ongoing course of conduct

knowingly, deliberately, and repeatedly threatened and

accomplished harm to public health and safety and large-scale

economic loss to hospitals, families, communities, and

governments across the state.

"1035. As all of the governmental actions against

Defendants show, Defendants knew that their actions were

unlawful, and yet deliberately refused to change their

practices because compliance with their legal obligations

would have decreased their sales and profits."

(Emphasis added.)

On September 8, 2022, the distributor defendants filed a motion to

dismiss the plaintiffs' claims against them pursuant to Rule 12(b)(6), Ala.

R. Civ. P. In their motion, the distributor defendants alleged, among

other things, that the plaintiffs' claims against them were barred by the

applicable statutes of limitations. On March 20, 2023, the trial court

entered an order denying the motion to dismiss. The petitioners

subsequently filed their petition for a writ of mandamus directing the

trial court to vacate its March 20, 2023, order denying their motion to

dismiss and to enter an order dismissing the plaintiffs' claims against

them with prejudice.

Standard of Review

24

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" 'A writ of mandamus is an extraordinary

remedy available only when the petitioner can

demonstrate: " '(1) a clear legal right to the order

sought; (2) an imperative duty upon the

respondent to perform, accompanied by a refusal

to do so; (3) the lack of another adequate remedy;

and (4) the properly invoked jurisdiction of the

court.' " Ex parte Nall, 879 So. 2d 541, 543 (Ala.

2003) (quoting Ex parte BOC Grp., Inc., 823 So. 2d

1270, 1272 (Ala. 2001)).'

"Ex parte Watters, 212 So. 3d 174, 180 (Ala. 2016).

" 'The general rule is that, subject to certain narrow

exceptions, the denial of a motion to dismiss is not reviewable

by petition for a writ of mandamus.' Ex parte Brown, 331 So.

3d 79, 81 (Ala. 2021). However,

" '[t]his Court has recognized that an appeal

is an inadequate remedy in cases where it has

determined that a defendant should not have been

subjected to the inconvenience of litigation

because it was clear from the face of the complaint

that the defendant was entitled to a dismissal or

to a judgment in its favor.'

"Ex parte Sanderson, 263 So. 3d 681, 687-88 (Ala. 2018)

(citing Ex parte Hodge, 153 So. 3d 734 (Ala. 2014), and Ex

parte U.S. Bank Nat'l Ass'n, 148 So. 3d 1060 (Ala. 2014)). In

particular, in Ex parte Hodge, this Court permitted

mandamus review of a trial court's denial of a motion to

dismiss contending that the plaintiff's malpractice claim was

barred by the four-year statute of repose contained in § 6-5-

482(a), Ala. Code 1975, when the applicability of that statute

was clear from the face of the complaint. Cf. Ex parte

Watters, 212 So. 3d at 182 (denying a mandamus petition

because 'it [was] not abundantly clear from the face of [the

plaintiff's] complaint whether the survival statute dictate[d]

25

SC-2023-0289

dismissal of the legal-malpractice claim because the issue

whether the claim sound[ed] in tort, in contract, or in both for

that matter, [was] sharply disputed by the parties'). Thus, if

it is clear from the face of [the plaintiff's] complaint that the

claims against [the defendant] are barred by the rule of repose

or the applicable statute of limitations, then [the defendant]

is entitled to mandamus relief.

"With respect to evaluating a trial court's denial of a

Rule 12(b)(6) motion to dismiss,

" '[t]he appropriate standard of review ... is

whether "when the allegations of the complaint

are viewed most strongly in the pleader's favor, it

appears that the pleader could prove any set of

circumstances that would entitle [the pleader] to

relief." Nance v. Matthews, 622 So. 2d 297, 299

(Ala. 1993); Raley v. Citibanc of

Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.

1985). This Court does not consider whether the

plaintiff will ultimately prevail, but only whether

the plaintiff may possibly prevail. Nance, 622 So.

2d at 299. A "dismissal is proper only when it

appears beyond doubt that the plaintiff can prove

no set of facts in support of the claim that would

entitle the plaintiff to relief." Nance, 622 So. 2d at

299; Garrett v. Hadden, 495 So. 2d 616, 617 (Ala.

1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala.

1986).'

"Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 260 (Ala.

2003)."

Abbott, 342 So. 3d at 193-94.

" ' "[A] Rule 12(b)(6) dismissal is proper only

when it appears beyond doubt that the plaintiff

can prove no set of facts in support of the claim

26

SC-2023-0289

that would entitle the plaintiff to relief." Nance v.

Matthews, 622 So. 2d 297, 299 (Ala. 1993)

(citations omitted). "Next, the standard for

granting a motion to dismiss based upon the

expiration of the statute of limitations is whether

the existence of the affirmative defense appears

clearly on the face of the pleading." Braggs v. Jim

Skinner Ford, Inc., 396 So. 2d 1055, 1058

(Ala.1981) (citations omitted).'

"Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1193 (Ala.

2003)."

Limon v. Sandlin, 200 So. 3d 21, 23-24 (Ala. 2015).

Discussion

The petitioners argue that the trial court erroneously denied their

motion to dismiss based upon statute-of-limitations grounds. They

contend that

"Plaintiffs' claims against Distributors are barred by the

applicable two-year statute of limitations. See Abbott, 342 So.

3d at 194 & n.7; Ex parte Brian Nelson Excavating, LLC, 25

So. 3d 1143, 1154 (Ala. 2009) (discussing 'the two-year statute

of limitations in § 6-2-38, Ala. Code 1975, for nuisance

claims')."

Petition at 6. In Abbott, this Court stated:

"The statute of limitations for a nuisance claim is two years.7

See, e.g., Ex parte Brian Nelson Excavating, LLC, 25 So. 3d

1143, 1145 (Ala. 2009) (discussing 'the two-year statute of

limitations in § 6-2-38, Ala. Code 1975, for nuisance claims').

"____________________

27

SC-2023-0289

"7The applicable statute of limitations for most of Mobile

Health's other claims against Abbott -- negligence,

wantonness, and fraud and deceit -- is also two years. See,

e.g., Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 88 (Ala.

2012) ('We once again reaffirm the proposition that

wantonness claims are governed by the two-year statute of

limitations now embodied in § 6-2-38(l)[, Ala. Code 1975].');

Bush v. Ford Life Ins. Co., 682 So. 2d 46, 47 (Ala. 1996) ('The

statute of limitations applicable to a negligence claim is two

years.'); Liberty Nat'l Life Ins. Co. v. McAllister, 675 So. 2d

1292, 1297 (Ala. 1995) ('A fraud action is subject to a two-year

statute of limitations.'). The same limitations period applies

to the civil-conspiracy claims. See, e.g., Freeman v. Holyfield,

179 So. 3d 101, 105 (Ala. 2015). This Court has not decided

whether the applicable limitations period for an unjust-

enrichment claim is two years or six years. See Snider v.

Morgan, 113 So. 3d 643, 655 (Ala. 2012) ('Our research

similarly confirms that there is a distinct absence of authority

definitively stating the statute of limitations applicable to an

unjust-enrichment claim. We need not, however, decide that

issue here.'). However, Mobile Health did not argue before

the circuit court or in this Court that its unjust-enrichment

claim against Abbott is within the statute of limitations

absent tolling through fraud, an argument we address later

in this opinion."

342 So. 3d at 194-95.2 The petitioners assert that "[t]his Court should

grant mandamus review and confirm that Abbott compels dismissal

because Plaintiffs' own allegations establish that their purported injuries

-- increased costs associated with the treatment of patients with opioid-

2Inthis case, the plaintiffs have not argued that their unjust-

enrichment claims are subject to a six-year statute of limitations.

28

SC-2023-0289

related conditions -- necessarily occurred years before the applicable

accrual date of March 26, 2019." Petition at 1.

In the "Tolling and Fraudulent Concealment" section of the

amended complaint, the plaintiffs alleged:

"1060. Plaintiffs maintain that each Defendant has

engaged in conduct within the applicable limitations period

and that has been described above. Such misconduct

indicates that the statute of limitations does not operate as a

bar to Plaintiffs' claims. Nevertheless, Plaintiffs also allege

facts, as described below, that toll the running of the statute

of limitations.

"….

"1067. As described in this complaint, although

Defendants' misconduct that caused the opioid epidemic

began many years ago, Defendants have continued to engage

in such conduct within the relevant statute of limitations

period."

In their amended complaint, the plaintiffs alleged that the remaining

defendants have "engaged in conduct within the applicable limitation

period" and that "[s]uch misconduct indicates that the statute of

limitations does not operate as a bar to Plaintiffs' claims." They further

alleged that the applicable statutes of limitations were tolled because the

remaining defendants had fraudulently concealed the various causes of

action.

29

SC-2023-0289

The petitioners argue that this Court's decision in Abbott "confirms

that the continuing tort doctrine does not apply." Petition at 17. They

go on to argue:

"Plaintiffs' Amended Complaint preemptively attempts

to circumvent the statute of limitations by invoking the

continuing tort doctrine, alleging in a conclusory fashion that

Distributors' misconduct continues through today. See, e.g.,

Am. Compl. ¶¶ 113, 120, 125, 152, 156, 161, 990.17 But

Plaintiffs do not identify any specific conduct within the

limitations period. On the contrary, they say that it 'can be

inferred' based solely on alleged misconduct in earlier periods.

Id. ¶¶ 113, 120, 125, 156, 161. These allegations are not

sufficient to trigger the continuing tort doctrine under

Alabama law.

"This Court rejected that precise outcome and confirmed

the limits of the continuing tort doctrine in Abbott. This

Court held that generic allegations that defendants

'continue[] to conduct' wrongdoing or that a particular

defendant's tort 'was a continuing pattern of conduct that

continued at least until the time that [plaintiffs] filed the

lawsuit' are insufficient as a matter of law to avoid the statute

of limitations. Abbott, 342 So. 3d at 195 (quoting the

complaint). Instead, to invoke the continuing tort doctrine,

the complaint must raise 'specific allegations against' the

defendant of conduct within the limitations period. Id.

(emphasis added).

"_________________

"17As to each Distributor, Plaintiffs rotely allege 'on

information and belief that [distributor] continues to operate

in ways that enable the diversion of prescription opioids.' Id.

¶¶ 113, 120, 125, 152, 156, 161."

30

SC-2023-0289

Petition at 17-18. However, the petitioners overstate this Court's holding

in Abbott regarding the pleading requirements for a continuing tort.

In Abbott, the Mobile County Board of Health and the Family

Oriented Primary Health Care Clinic (collectively referred to as "Mobile

Health") sued over 60 defendants, including Abbott Laboratories and

Abbott Laboratories, Inc. (collectively referred to as "Abbott"). In its

complaint, "Mobile Health alleged that Abbott had participated in the

marketing of a specific prescription drug, Oxycontin." 342 So. 3d at 188.

Mobile Health alleged that the defendants "had caused a public nuisance

in the form of an opioid epidemic." Additionally,

"[w]ith respect to Abbott's conduct, Mobile Health

alleged:

" '143. Abbott was primarily engaged in the

promotion and distribution of opioids nationally

due to a co-promotional agreement with Purdue.

Pursuant to that agreement, between 1996 and

2006, Abbott actively promoted, marketed, and

distributed Purdue's opioid products as set forth

above.

" '144. Abbott, as part of the co-promotional

agreement, helped turn OxyContin into the largest

selling opioid in the nation. Under the co-

promotional agreement with Purdue, the more

Abbott generated in sales, the higher the reward.

Specifically, Abbott received twenty-five to thirty

percent (25-30%) of all net sales for prescriptions

31

SC-2023-0289

written by doctors its sales force called on. This

agreement was in operation from 1996-2002,

following which Abbott continued to receive a

residual payment of six percent (6%) of net sales

up through at least 2006.

" '145. With Abbott's help, sales of OxyContin went

from a mere $49 million in its first full year on the

market to $1.2 billion in 2002. Over the life of the

co-promotional agreement, Purdue paid Abbott

nearly half a billion dollars.'

"(Emphasis added.)

"Mobile Health asserted that it brought this action

because of the burdens it has had to bear as a result of the

'opioid epidemic.'

" '36. Boards of health and their affiliated primary

care providers -- legally and morally -- are

compelled to act and treat patients with opioid-

related conditions[] and, as a result, are directly

and monetarily damaged by the opioid epidemic.

In addition to the cost of the opioid drugs

themselves, boards of health and their affiliated

primary care providers have incurred and

continue to incur millions of dollars in damages for

the costs of uncompensated care as a result of the

unlawful marketing, distribution, and sale of

opioids. Boards of health and their affiliated

primary care providers directly and monetarily

bear the brunt of the opioid crisis.

" '37. [Mobile Health is] struggling from the

relentless and crushing financial burdens caused

by the epidemic of opioid addiction.

32

SC-2023-0289

" '38. The effects of the opioid epidemic on boards

of health and their affiliated primary care

providers may soon become even greater. The

coverage rules under the Affordable Care Act

("ACA") are in transition, thus creating the

possibility of increased costs for boards of health

for treatment of opioid-addicted patients admitted

under the Emergency Medical Treatment and

Labor Act ("EMTALA"), 42 U.S.C. § 395dd. Those

increased costs would increase the likelihood that

patients would seek treatment through boards of

health and their primary care providers.

" '39. [Mobile Health] encounter[s] patients with

opioid addiction on a daily basis. [It] must deal

with patients who have serious medical conditions

that require extra care and expense because the

patients are addicted to opioids.

" '40. The statistics are startling. Adult

hospitalizations due substantially to opioid-

related medical conditions doubled from 2000 to

2012. From 2005 to 2014, emergency department

visits exhibited a 99.4% cumulative increase.

[Mobile Health has] experienced similar increases

in the number of patients seen with opioid-related

medical issues.

" '41. Between 2005 and 2014, there was a

dramatic increase nationally in hospitalizations

involving opioids: the rate of opioid-related

inpatient stays increased 64%, and the rate of

opioid-related emergency department ("ED") visits

nearly doubled. And, likewise, [Mobile Health

has] experienced a similar increase in visits from

patients with opioid-related medical issues.

" '....

33

SC-2023-0289

" '43. The cost to treat those with opioid addiction

has more than tripled in a decade, up to nearly $15

billion in 2012. Similarly, the number of patients

hospitalized due to the effects of these drugs

surged by more than 72% in 2012, although overall

hospitalizations during that time stayed relatively

flat. [Mobile Health has] experienced similar

increases and similar associated increased costs.

" '44. Private insurance covers only a portion of

those costs. The burden is carried by hospitals,

boards of health, primary care providers, patients,

and government programs. In 2012, hospitals

provided almost $15 billion for opioid-related

inpatient care, more than double of what they

billed in 2002. A substantial portion of these costs

were under-insured or unreimbursed.

" '45. In 2012, an average hospital stay for a

patient with an opioid-related condition cost about

$28,000 and only about 20% of the hospital stays

related to those incidents were covered by private

insurance. The number increased to $107,000 if

there was an associated infection, with merely

14% covered by insurance.

" '46. Patients with complex opioid addiction-

related histories (medically and psychosocially)

often cannot get treatment at skilled nursing

facilities if they are discharged by hospitals.

" ' 47. The cost of treating opioid overdose victims

in hospital intensive care units jumped 58% in a

seven-year span. Between 2009 and 2015, the

average cost of care per opioid overdose admission

increased from $58,000 to $92,400. This was

during a period where the overall medical cost

34

SC-2023-0289

escalation was about 19%. This cost increase also

highlights a troubling trend: overdose patients are

arriving in worse shape, requiring longer stays

and a higher level of treatment.

" '....

" '49. The rates of opioid abuse during pregnancy

have increased nationally and in Alabama. There

has been an almost four-fold increase in

admissions to NICUs [neonatal intensive-care

units] for NAS over the past decade: from seven

cases per 1,000 NICU admissions in 2004, to 27

cases per 1,000 NICU admissions in 2012.

" '….'

"(Emphasis added.)

"On October 15, 2019, Mobile Health filed its original

complaint in the Mobile Circuit Court against Abbott and

numerous other defendants -- over 60 defendants in all --

alleging that they had caused a public nuisance in the form of

an opioid epidemic:

" '1. The opioid epidemic is an ongoing crisis in

Alabama. Opioid use has had tragic consequences

for communities across Alabama, including those

in Mobile, Baldwin, and Conecuh Counties.

Thousands of people have died from opioid

overdoses, and many thousands more suffer from

Opioid use disorders and related health conditions

in Alabama. The misrepresentations by

Defendants described herein regarding the risks

and benefits of opioids enabled, and are continuing

to enable, the widespread prescribing of opioids for

common chronic pain conditions like lower back

pain, arthritis, and headaches.

35

SC-2023-0289

" '....

" '953. This [nuisance] claim is brought under the

Alabama common law of nuisance. This claim is

also brought pursuant to Ala. Code § 22-3-2(3),

which instructs Plaintiff Mobile County Board of

Health to abate nuisances.

" '....

" '958. The nuisance created by Defendants is the

over-saturation of opioids in the patient

population of the geographic area served by

[Mobile Health] for illegitimate purposes, as well

as the adverse social, economic, and human health

outcomes associated with widespread illegal opioid

use.'

"Mobile Health asserted against Abbott claims of negligence,

wantonness, nuisance, unjust enrichment, fraud and deceit,

and civil conspiracy. With respect to all of their claims

against all the defendants, Mobile Health alleged:

" '918. [Mobile Health is] entitled to a tolling of any

statutes of limitation because Defendants

fraudulently concealed the existence of their

causes of action from [it]. [Mobile Health] did not

know, and did not have any reason to know, any of

the facts regarding Defendants' marketing

misconduct until the DEA's [Drug Enforcement

Administration] ARCOS [Automated Reports and

Consolidated Ordering System] data was released

in 2019. Until then, [Mobile Health was] not

aware that the opioid crisis was the result of

massive and improper distribution of opioids in

the counties that [it] serve[s]. Also, [Mobile

Health] did not know, and did not have any reason

36

SC-2023-0289

to know, of the Defendants' failures to report

suspicious orders and otherwise prevent diversion

of opioids in the three counties that [it] serve[s]

until [it was] able to obtain in 2019 excerpts of

pleadings, documents, and testimony produced in

the MDL [multidistrict litigation]. [Mobile

Health] first became aware of allegations about

Defendants' marketing practices from news

articles in 2018. Without the ARCOS data, and

without the information from the MDL, [Mobile

Health was] unable to determine that [it] had a

cause of action to pursue against Defendants.' "

Abbott, 342 So. 3d at 189-93 (footnotes omitted).

Abbott filed a motion to dismiss all the claims Mobile Health had

stated against it, asserting, among other things, that the claims were

barred by the applicable statutes of limitations and the 20-year common-

law rule of repose. After Mobile Health filed a response and Abbott filed

a reply in support of its motion to dismiss, the trial court entered an order

in which it denied Abbott's motion to dismiss. Abbott subsequently filed

a mandamus petition in this court. In its mandamus petition, Abbott

argued, in part, that Mobile Health's claims against it were barred by the

applicable statutes of limitations.

In addressing Abbott's arguments, this Court stated, in pertinent

part:

37

SC-2023-0289

" 'The statute of limitations begins to run when the cause

of action accrues, which this Court has held is the date the

first legal injury occurs.' Ex parte Integra LifeSciences Corp.,

271 So. 3d 814, 818 (Ala. 2018). 'A cause of action accrues as

soon as the claimant is entitled to maintain an action,

regardless of whether the full amount of the damage is

apparent at the time of the first legal injury.' Chandiwala v.

Pate Constr. Co., 889 So. 2d 540, 543 (Ala. 2004).

"The claim both parties focus on with respect to the

statute of limitations is Mobile Health's nuisance claim. The

statute of limitations for a nuisance claim is two years. See,

e.g., Ex parte Brian Nelson Excavating, LLC, 25 So. 3d 1143,

1145 (Ala. 2009) (discussing 'the two-year statute of

limitations in § 6-2-38, Ala. Code 1975, for nuisance claims').

As Abbott observes, according to the complaint, Abbott last

actively marketed OxyContin in 2002 and it received its last

payments from its co-promotion agreement with Purdue in

2006, but Mobile Health commenced this action on October

15, 2019. Abbott therefore argues that from the face of the

complaint Mobile Health commenced its action 11 years after

the expiration of the applicable statute of limitations.

"Mobile Health presents three arguments in response.

First, it contends that it alleged that the public nuisance is a

continuing tort and, thus, is not barred by the statute of

limitations.

" 'The Complaint shows that [Mobile Health]

alleges that Abbott's tort was a continuing pattern

of conduct that continued at least until the time

that [Mobile Health] filed the lawsuit. See

generally Complaint. Thus, under established

Alabama law, the Complaint sufficiently alleges

continuing tortious conduct and the statute of

limitations does not bar this continuing nuisance

claim.'

38

SC-2023-0289

"Mobile Health's brief, p. 15. For support, Mobile Health cites

such cases as Alabama Great Southern R.R. v. Denton, 239

Ala. 301, 305, 195 So. 218, 221 (1940), in which this Court

stated: 'We recognize that one maintaining a continuing

public nuisance, as for example, one endangering the public

health or public safety, cannot defend against a suit to abate

same because of the lapse of time.' See also Holz v. Lyles, 287

Ala. 280, 284, 251 So. 2d 583, 587 (1971) ('But one

maintaining a continuing public nuisance cannot defend

against a suit to abate the nuisance because of lapse of time

....').

"Mobile Health is certainly correct that it generally

alleged a continuous tort against the marketing defendants[,

which included Abbott].

" '221. Each Marketing Defendant has conducted,

and continues to conduct, a marketing scheme

designed to persuade doctors and patients that

opioids can and should be used for chronic pain,

resulting in opioid treatment for a far broader

group of patients who are much more likely to

become addicted and suffer other adverse effects

from the long-term use of opioids. In connection

with this scheme, each Marketing Defendant

spent, and continues to spend, millions of dollars

on promotional activities and materials that

falsely deny, trivialize, or materially understate

the risks of opioids while overstating the benefits

of using them for chronic pain.'

"However, the specific allegations against Abbott in the

complaint do not mention conduct of any kind by Abbott after

2006. This is important because there must be a connection

between the defendant's actions and the ongoing tort.

" 'This Court has used the term "continuous tort"

to describe a defendant's repeated tortious conduct

39

SC-2023-0289

which has repeatedly and continuously injured a

plaintiff. These cases can be analyzed by

analogizing the plaintiffs' cause of action to the

common law action of continuing trespass or

trespass on the case.

" 'This Court has held that a defendant's

repeated wrongs to the plaintiff can constitute a

"continuous tort," such as: (1) when an employer

exposes its employee on a continuing basis to

harmful substances and conditions [American

Mut. Liability Ins. Co. v. Agricola Furnace Co., 236

Ala. 535, 183 So. 677 (1938)]; (2) when there is a

"single sustained method pursued in executing one

general scheme," as in a blasting case [Lehigh

Portland Cement Co. v. Donaldson, 231 Ala. 242,

246, 164 So. 97 (1935)]; and (3) when a plaintiff

landowner seeks damages for the contamination of

a well or stream [Howell v. City of Dothan, 234

Ala. 158, 174 So. 624 (1937); Employers Insurance

Company of Alabama v. Rives, 264 Ala. 310, 87 So.

2d 653 (1955); and Alabama Fuel & Iron Co. v.

Vaughn, 203 Ala. 461, 83 So. 323 (1919)].

" ' The stream and well pollution cases, the

blasting cases, and the employer-employee cases

are all cases in which this Court has held that the

defendants committed a continuous tort. The

cases are analogous to a continuing trespass in

that the repeated actions of the defendants

combined to create a single cause of action in tort.'

"Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220-21 (Ala. 1983)

(emphasis added). See also Continental Cas. Ins. Co. v.

McDonald, 567 So. 2d 1208, 1216 (Ala. 1990) (holding that 'an

action such as this, arising from continuing dealings between

the parties, will not be barred until two years after the last

tortious act by the defendant' (emphasis added)). Holz and

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Denton contain this same idea by discussing a defendant's

'maintaining a continuing public nuisance,' indicating that

the reason the statute of limitations does not expire for a

continuous tort is because the defendant's conduct is ongoing

within the period of the statute of limitations. Cf. Payton v.

Monsanto Co., 801 So. 2d 829, 836 (Ala. 2001) (concluding that

the plaintiff's 'complaint describing continuing discharge of

PCBs as of the time of the commencement of this action'

allowed the claims to 'survive a defense of limitations by proof

of conduct occurring within the limitations period'); Alabama

Power Co. v. Gielle, 373 So. 2d 851, 854 (Ala. Civ. App. 1979)

('A continuing trespass creates successive causes of action,

and damages may be recovered for the trespass occurring

within the statutory period.').

"In short, the fact that the alleged opioid epidemic itself

was ongoing at the time Mobile Health filed its original

complaint does not mean that Abbott's conduct in relation to

the epidemic is not subject to the statute of limitations. As

the Court explained in Payton:

" 'Alabama law does not recognize a continuing tort

in instances where there has been a single act

followed by multiple consequences.2

" '___________________

" ' 2Moon v. Harco Drugs, Inc., 435 So. 2d 218,

220-21 (Ala. 1983), discusses the concept of

"continuous tort," describing it as a defendant's

liability for repeated wrongs to the plaintiff. Then,

the Court offers several illustrations, including

"when a plaintiff landowner seeks damages for the

contamination of a well or stream." Id. at 221.

However, the three cases cited to support this

proposition involve repetitive acts or ongoing

wrongdoing[:] Howell v. City of Dothan, 234 Ala.

158, 174 So. 624 (1937) (ongoing discharge of

41

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sewage), Employers Insurance Co. of Alabama v.

Rives, 264 Ala. 310, 87 So. 2d 653 (1955) (opinion

refers to repetitive acts), Alabama Fuel & Iron Co.

v. Vaughn, 203 Ala. 461, 83 So. 323 (1919) (damage

resulting from the ongoing operations of a coal

mine).'

"801 So. 2d at 835 (emphasis added). There are no allegations

of ongoing wrongdoing by Abbott within two years of the date

Mobile Health filed its original complaint. Therefore, Mobile

Health's general allegation of a continuous public nuisance

does not save its claims against Abbott from the statute-of-

limitations bar."

Abbott, 342 So. 3d at 194-96 (footnote omitted).

The petitioners argue that, in Abbott, this Court held that, "to

invoke the continuing tort doctrine, the complaint must raise 'specific

allegations against' the defendant of conduct within the limitations

period. [Abbott, 342 So. 3d at 195] (emphasis added)." Petition at 18.

However, the petitioners overstate this Court's holding in Abbott.

Contrary to the petitioners' argument, Abbott did not hold that a

complaint must allege specific factual allegations against a defendant "to

invoke the continuing tort doctrine." Petition at 18. In Abbott, Mobile

Health's complaint alleged that "Abbott last actively marketed

OxyContin in 2002 and it received its last payments from its co-

promotion agreement with Purdue in 2006, but Mobile Health

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commenced this action on October 15, 2019." 342 So. 3d at 195. This

Court acknowledged that Mobile Health had "generally alleged a

continuous tort against the marketing defendants." Id. Additionally, we

did not hold that such general allegations against the marketing

defendants were insufficient to allege a continuing tort for statute-of-

limitations purposes. Rather, this Court looked at Mobile Health's

specific factual allegations against Abbott. The complaint in that case

included specific factual allegations that "Abbott last actively marketed

OxyContin in 2002 and it received its last payments from its co-

promotion agreement with Purdue in 2006." Id. This Court emphasized

that "the specific factual allegations against Abbott did not mention

conduct of any kind by Abbott after 2006" and that "[t]his is important

because there must be a connection between the defendant's actions and

the ongoing tort." Id. (second emphasis added). This Court went on to

state that "[t]here are no allegations of ongoing wrongdoing by Abbott

within two years of the date Mobile Health filed its original complaint.

Therefore, Mobile Health's general allegation of a continuous public

nuisance does not save its claim against Abbott from the statute-of-

limitations bar." Id. at 196. Based on the foregoing, it is clear that in

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Abbott this Court did not hold that a complaint alleging a continuous tort

must include specific factual allegations regarding a defendant's conduct

that purportedly occurs during the limitations period. Rather, our

decision was based on the fact that the compliant in that case included

specific factual allegations showing that Abbott's alleged misconduct had

ended more than two years before the filing of the complaint in that case.

In this case, the amended complaint, which was filed after this

Court decided Abbott, included specific factual allegations regarding

conduct by each of the petitioners that took place outside the two-year

statute of limitations and conduct that took place outside Alabama.

However, based on those allegations, the plaintiffs asserted that the

petitioners have engaged in a pattern of misconduct. They further

asserted, "on information and belief," that each of the petitioners

"continues to operate in ways that enable the diversion of prescriptive

opioids." Additionally, with regard to the "impact of defendants'

activities on plaintiffs," the plaintiffs alleged:

"266. Plaintiffs have treated, and continue to treat,

numerous patients for opioid-related conditions, including:

(1) opioid overdose; (2) opioid addiction; (3) hepatitis C, HIV,

and other infections occurring as a result of intravenous drug

use; (4) neonatal treatment in its NICU for babies born opioid-

dependent, for which treatment is specialized, intensive,

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complex, lengthy and highly expensive; and (5) psychiatric

and related treatment for patients with opioid addiction who

present in need of mental health treatment programs.

"267. Plaintiffs' hospitals have suffered a continuing

operational impact as a consequence of the opioid epidemic

created by Defendants' conduct. Simply put, providing the

same level of care and service to patients is more expensive in

the presence of an opioid epidemic than it would be without

that epidemic. For instance, the same medical or surgical

procedure is often more expensive to perform on a patient

with an opioid use disorder than on a patient without that

disorder due to the need to take additional measures and

steps to ensure the patient's safety during and after the

procedure.

"268. Additionally, individuals with opioid addiction

have presented and continue to present themselves to

Plaintiffs claiming to have illnesses and medical problems in

an effort to obtain opioids. Plaintiffs have incurred and

continue to incur operational costs related to the time and

expenses in diagnosing, testing, and otherwise attempting to

treat these individuals.

"….

"271. Patients with opioid-related conditions seek

treatment from Plaintiffs as a proximate result of the opioid

epidemic created and engineered by Defendants. As a result,

Plaintiffs' monetary losses with respect to treatment of these

patients were and are foreseeable to Defendants and were and

are the proximate result of Defendants' acts and omissions

specified herein. Second, patients with opioid conditions have

caused Plaintiffs to incur, and continue to incur, increased

costs in the form of surgical procedures and other care that

have been and are more complex and expensive than they

would otherwise be if the patients were not using or abusing

opioids."

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(Emphasis added.)

Based on those factual allegations, the amended complaint

generally alleged a continuing tort against the petitioners. However,

unlike the situation in Abbott, the amended complaint did not include

any specific allegations stating or suggesting that any of the petitioners'

alleged misconduct had ended before March 26, 2019, or at any time

before the filing of the complaint. Rather, the complaint specifically

alleged that each of the petitioners "continues to operate in ways that

enable the diversion of prescriptive opioids." Thus, the facts in this case

are clearly distinguishable from the facts in Abbott.

As we have stated:

"We note that pleadings are to be liberally construed in order

to effect the purpose of the Alabama Rules of Civil Procedure

and that every reasonable intendment and presumption must

be made in favor of the pleader. See Rule 8, Ala. R. Civ. P.;

Ex parte International Refining & Mfg. Co., 972 So. 2d 784,

789 (Ala. 2007)."

Ex parte Moulton, 116 So. 3d 1119, 1132 (Ala. 2013). As this Court noted

in Abbott,

"[w]ith respect to evaluating a trial court's denial of a

Rule 12(b)(6) motion to dismiss,

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SC-2023-0289

" '[t]he appropriate standard of review ... is

whether "when the allegations of the complaint

are viewed most strongly in the pleader's favor, it

appears that the pleader could prove any set of

circumstances that would entitle [the pleader] to

relief." Nance v. Matthews, 622 So. 2d 297, 299

(Ala. 1993); Raley v. Citibanc of

Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.

1985). This Court does not consider whether the

plaintiff will ultimately prevail, but only whether

the plaintiff may possibly prevail. Nance, 622 So.

2d at 299. A "dismissal is proper only when it

appears beyond doubt that the plaintiff can prove

no set of facts in support of the claim that would

entitle the plaintiff to relief." Nance, 622 So. 2d at

299; Garrett v. Hadden, 495 So. 2d 616, 617 (Ala.

1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala.

1986).'

"Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 260 (Ala.

2003)."

342 So. 3d at 194.

"We emphasize that, at this stage of the proceedings, the

applicable standard of review required the circuit court and

requires this Court to view [the plaintiffs'] allegations most

strongly in [their] favor and to consider only whether [they]

might possibly prevail if [they] can prove [their] allegations.

See Ex parte Abbott Lab'ys, 342 So. 3d at 194. The issue

before us is not one of proof; rather, the issue is whether the

action can be maintained if [the plaintiffs'] allegations are

true. See id."

Ex parte Mobile Infirmary Ass'n, 349 So. 3d 842, 847 (Ala. 2021).

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Viewing the plaintiffs' allegations that the petitioners' alleged

misconduct continued through the time of the filing of the complaint as

true, the plaintiffs' claims would not be barred by the applicable statutes

of limitations. Thus, it is not clear from the face of the complaint that

the plaintiffs' claims against the petitioners are barred by the applicable

statutes of limitations. Whether the plaintiffs will be able to present

proof that the petitioners actually engaged in misconduct within the

limitations period is not before us at this time. Therefore, the trial court

did not err when it denied the petitioners' motion to dismiss on statute-

of-limitations grounds. Accordingly, the petitioners are not entitled to an

order dismissing the plaintiffs' claims against them. 3

Conclusion

Based on the foregoing, the petitioners have not established that

the face of the amended complaint clearly demonstrated that the

plaintiffs' claims against them are barred by the applicable statutes of

limitations and that the trial court erred when it denied their motion to

dismiss. Accordingly, the petitioners have not established a clear legal

3Based on this holding, we pretermit discussion of the petitioners'

argument that the doctrine of fraudulent concealment does not apply.

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right to the relief they seek. Therefore, the petition for a writ of

mandamus is denied.

PETITION DENIED.

Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, and

Mitchell, JJ., concur.

Cook, J., concurs in the result, with opinion.

Sellers, J., dissents.

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COOK, Justice (concurring in the result).

I concur in the result but do so with hesitation. The question

presented is whether the claims alleged in the most recent amended

complaint were sufficiently pleaded to withstand the petitioners' motion

to dismiss. What makes this question particularly difficult in the present

case is that the petitioners moved to dismiss the plaintiffs' claims against

them based upon an affirmative defense -- that the claims are barred by

the applicable statutes of limitations.

On the one hand, the most recent amended complaint is voluminous

and contains conclusory, general allegations of wrongdoing by each of the

petitioners that are within the applicable two-year statute-of-limitations

period. For instance, as to each of the petitioners, the amended complaint

stated:

"From this pattern of instances, it can be inferred that [the

petitioners'] policies and procedures have failed to adapt and

change in order to prevent the future diversion of prescription

opioids. On that basis, Plaintiffs allege on information and

belief that [the petitioners] continue[] to operate in ways that

enable the diversion of prescription opioids."

(Emphasis added.) On the other hand, the complaint also cited specific

dates for alleged wrongdoing by the petitioners that are outside of the

applicable limitations period. What are we to make of this?

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The main opinion concludes that, at the pleading stage, these

allegations are sufficient to satisfy the pleading requirements for a

continuous-tort claim. I am not so sure.

The petitioners rely almost exclusively upon this Court's recent

decision in Ex parte Abbott Laboratories, 342 So. 3d 186 (Ala. 2021), in

arguing that we must grant their petition for a writ of mandamus and

order the trial court to grant their motion to dismiss. Specifically, they

assert that "[t]his Court should grant mandamus review and confirm that

Abbott compels dismissal because [the plaintiffs'] own allegations

establish that their purported injuries … necessarily occurred years

before the applicable accrual date" in the present action. Petition at 1.

In Abbott, we explained:

" 'The statute of limitations begins to run when the cause

of action accrues, which this Court has held is the date the

first legal injury occurs.' Ex parte Integra LifeSciences Corp.,

271 So. 3d 814, 818 (Ala. 2018). 'A cause of action accrues as

soon as the claimant is entitled to maintain an action,

regardless of whether the full amount of the damage is

apparent at the time of the first legal injury.' Chandiwala v.

Pate Constr. Co., 889 So. 2d 540, 543 (Ala. 2004).

"….

"Mobile Health is certainly correct that it generally

alleged a continuous tort against the marketing defendants[,

including Abbott].

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"'….'

"However, the specific allegations against Abbott in the

complaint do not mention conduct of any kind by Abbott after

2006. This is important because there must be a connection

between the defendant's actions and the ongoing tort.

"'….'

"… There are no allegations of ongoing wrongdoing by

Abbott within two years of the date Mobile Health filed its

original complaint. Therefore, Mobile Health's general

allegation of a continuous public nuisance does not save its

claims against Abbott from the statute-of-limitations bar."

342 So. 3d at 194-96 (some emphasis added).4

4We also explained that continued consequences of the original

tortious conduct do not constitute a continuing tort; rather, we explained,

there must be continued tortious conduct:

"[T]he fact that the alleged opioid epidemic itself was ongoing

at the time Mobile Health filed its original complaint does not

mean that Abbott's conduct in relation to the epidemic is not

subject to the statute of limitations. As the Court explained

in Payton[ v. Monsanto Co., 801 So. 2d 829 (Ala. 2001)]:

" 'Alabama law does not recognize a continuing tort

in instances where there has been a single act

followed by multiple consequences.'2

" '_______________

" '2Moon v. Harco Drugs, Inc., 435 So. 2d 218,

220-21 (Ala. 1983), discusses the concept of

"continuous tort," describing it as a defendant's

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The petitioners certainly have a point that this case is very similar

to Abbott. I find it very difficult to distinguish that case from the

procedural posture in this case. Both this case and Abbott present (1)

nuisance claims regarding improper prescription-drug distribution; (2)

allegations based on specific facts that occurred more than two years

before the lawsuit was commenced; and (3) general allegations that the

wrongful conduct continued.

The main opinion contends, among other things, that Abbott can be

distinguished because the complaint in that case specifically alleged that

liability for repeated wrongs to the plaintiff. Then,

the Court offers several illustrations, including

"when a plaintiff landowner seeks damages for the

contamination of a well or stream." Id. at 221.

However, the three cases cited to support this

proposition involve repetitive acts or ongoing

wrongdoing[:] Howell v. City of Dothan, 234 Ala.

158, 174 So. 624 (1937) (ongoing discharge of

sewage), Employers Insurance Co. of Alabama v.

Rives, 264 Ala. 310, 87 So. 2d 653 (1955) (opinion

refers to repetitive acts), Alabama Fuel & Iron Co.

v. Vaughn, 203 Ala. 461, 83 So. 323 (1919) (damage

resulting from the ongoing operations of a coal

mine).'

"801 So. 2d at 835 (emphasis added)."

Id. at 196.

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the wrongful "co-promotion agreement" to market the opioid OxyContin

between Abbott and Purdue had expired. True. But Abbott also included

general allegations of continued wrongful conduct after that agreement

had expired, just like here. For instance, the complaint in Abbott alleged:

"'221. Each Marketing Defendant has conducted, and

continues to conduct, a marketing scheme designed to

persuade doctors and patients that opioids can and should be

used for chronic pain, resulting in opioid treatment for a far

broader group of patients who are much more likely to become

addicted and suffer other adverse effects from the long-term

use of opioids. In connection with this scheme, each

Marketing Defendant spent, and continues to spend, millions

of dollars on promotional activities and materials that falsely

deny, trivialize, or materially understate the risks of opioids

while overstating the benefits of using them for chronic pain.'"

Id. at 195 (emphasis added). And yet, this Court in Abbott held that the

claims against Abbott were due to be dismissed.

Thus, how do we distinguish Abbott? Is it enough that the plaintiffs'

most recent amended complaint uses the words "upon information and

belief"? Is it enough that the complaint in this case uses a separate

paragraph for each defendant (by name) to make generalized allegations

of continued conduct? Perhaps the best argument is that there was no

reason to think in Abbott that the wrongful conduct persisted (even

though the complaint claimed that it did) because one particular factual

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allegation of wrongdoing (the co-marketing agreement) had ended.

Whereas in the present case, perhaps there is reason to think that the

wrongs might have continued because the wrongs alleged with actual

facts did not include an end date. 5 I do not find any of these arguments

to be particularly persuasive in distinguishing Abbott from the present

case.

If I were to only focus on distinguishing Abbott, I would dissent.

However, I note that this Court has a long line of caselaw holding that

our pleading standard is liberal. For instance, this Court has previously

stated:

5It might be possible to argue that the language of Abbott requires

that allegations of continuing conduct be specific. For instance, in

rejecting the argument about general allegations of continued wrongful

conduct, this Court noted that "Mobile Health is certainly correct that it

generally alleged a continuous tort against the marketing defendants"

but that "the specific allegations against Abbott in the complaint do not

mention conduct of any kind by Abbott after 2006." Id. at 195 (some

emphasis added).

However, the only textual basis in the Alabama Rules of Civil

Procedure for a requirement of "specific allegations" is in relation to

allegations of fraud or mistake, per Rule 9(b), Ala. R. Civ. P. ("In all

averments of fraud or mistake, the circumstances constituting fraud or

mistake shall be stated with particularity."). The petitioners have not

argued that Rule 9, Ala. R. Civ. P., applies to the continuing-tort

allegations here.

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" '[T]he dismissal of a complaint is not proper if the pleading

contains "even a generalized statement of facts which will

support a claim for relief under [Ala. R. Civ. P.] 8" (Dunson v.

Friedlander Realty, 369 So. 2d 792, 796 (Ala. 1979)), because

"[t]he purpose of the Alabama Rules of Civil Procedure is to

effect justice upon the merits of the claim and to renounce the

technicality of procedure." Crawford v. Crawford, 349 So. 2d

65, 66 (Ala. Civ. App. 1977).' "

Segrest v. Segrest, 328 So. 3d 256, 274 (Ala. 2020) (quoting Simpson v.

Jones, 460 So. 2d 1282, 1285 (Ala. 1984)).

Notably, this pleading standard is more liberal than the standard

currently applied in federal courts. See generally Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009) (requiring that the complaint state a "plausible claim"). If we were

to apply the federal pleading standard in this case, we would be called

upon to determine whether the allegation that "on information and

belief" the petitioners "continue[] to operate in ways that enable the

diversion of prescription opioids" is plausible in light of, among other

things, the actual facts pleaded in the most recent amended complaint.

However, in this case, we have been asked neither to adopt the federal

pleading standard nor to overrule our caselaw upholding Alabama's

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liberal pleading standard. 6

Moreover, the petitioners' motion was not an ordinary motion to

dismiss. It was a motion to dismiss based upon an affirmative defense.

As noted in the main opinion, " 'the standard for granting a motion to

dismiss based upon the expiration of the statute of limitations is whether

the existence of the affirmative defense appears clearly on the face of the

pleading.' " Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1193 (Ala. 2003)

(quoting Braggs v. Jim Skinner Ford, Inc., 396 So. 2d 1055, 1058 (Ala.

1981)) (some emphasis added). I agree with the main opinion that it is

not clear from the face of the most recent amended complaint that the

plaintiffs' claims against the petitioners are barred by the applicable

statutes of limitations.

Because this case is before us on a petition for a writ of mandamus

6I note that federal courts and many state courts across the country

have operated under the heightened pleading standard enunciated in

Twombly and Iqbal, supra, for many years. While I offer no opinion on

whether this more stringent pleading standard should be adopted in

Alabama, I make this observation in the hope that future litigants may

consider raising this issue in an appropriate case for our Court to fully

consider after input from members of the public wishing to file amicus

briefs (including whether the heightened standard might be appropriate

in all cases or only in a subset of cases).

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-- an "extraordinary remedy" which is applicable only when there is "'a

clear legal right,'" Ex parte Watters, 212 So. 3d 174, 180 (Ala. 2016)

(citation omitted) -- we need not decide at this time whether the plaintiffs

will be able to present proof that the petitioners actually engaged in the

alleged misconduct during the applicable limitations period. This Court

can confront that question, if necessary, on appeal, upon the facts that

are in the record, rather than upon the limited basis of the pleadings. 7 It

is for this reason that I concur in the result.

7I note the argument of the plaintiffs that the petitioners' alleged

activity also constituted an "abatable nuisance." The petitioners reply by

arguing, among other things, that "abatable nuisance" was not pleaded

and that no abatable nuisance existed because it would require

additional tortious conduct within the limitations period, rather than

additional consequences from the earlier tortious conduct. They state

that each case cited by the plaintiffs involved "wrongdoing that occurred

within (and led to harm during) the limitations period." Petitioner's reply

brief at 6. Given the majority's resolution of this mandamus petition, we

need not reach the question whether the plaintiffs alleged an abatable

nuisance or whether, under Alabama law, an abatable nuisance requires

wrongful conduct within the limitations period -- i.e., whether in this case

the alleged nuisance is abated when the wrongful distribution of opioids

ceases or whether the alleged nuisance is abated only when the resulting

consequences of the distribution are remedied.

58