Defense Counsel Journal

IADC Amicus Briefs - Volume 87, Number 2

April 29, 2020

Amicus Curiae

The IADC amicus curiae program has been active in recent months. The following briefs were filed by the IADC since the last Defense Counsel Journal issue: 

IADC Amicus Brief Successfully Urges Tennessee Supreme Court to Grant Review in Drug Liability Case (3/26/2020)

On March 26, the Supreme Court of Tennessee granted the Application for Permission to Appeal in Effler v. Purdue Pharma. The IADC had filed an amicus brief in support of the Application. Dick Neumeier of Morrison Mahoney and Charles Michels of Taylor, Pigue, Marchettti & Blair wrote and filed the brief.

In this lawsuit, the Tennessee Court of Appeals ruled that state district attorneys could sue prescription drug manufacturers—here, Purdue Pharma, Mallinckrodt, Endo, and Teva—over the sale of opioids under the state’s Drug Dealer Liability Act (DDLA). The DDLA, though, was enacted to deal with street drug crime, not prescription drug abuse. The court rejected the notion that “a drug manufacturer can never be liable under the DDLA even when it knowingly exceeds the boundaries of its regulated framework.” Here, the district attorneys alleged the manufacturers knowingly participated in the diversion of opioids for illegal use.

The IADC brief highlighted the importance of this case and urged the Tennessee Supreme Court to grant the application. It discussed the purpose of the DDLA, which was solely to target illegal drugs, not drugs lawfully manufactured and sold under FDA regulations. To this end, the DDLA’s repeatedly refers to “illegal” drugs, whereas the medications at issue here are legal under state and federal law. In fact, extending this law to pharmaceutical manufacturers finds no support in any other jurisdiction. Finally, allowing the ruling to stand would have a significant chilling effect on the ability of pharmaceutical manufacturers to develop and sell medications that improve the health and well-being of consumers.

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IADC Files Amicus Brief Asking Alabama Supreme Court to Stop Improper Forum Shopping (3/25/2020)

On March 25, 2020, the IADC filed an amicus brief with the Supreme Court of Alabama in support of a Petition for a Writ of Mandamus filed by the defendants in DCH Healthcare Authority v. Purdue Pharma. Phil Goldberg and Samantha Burnette of Shook Hardy and Bacon wrote the brief on behalf of IADC and the American Tort Reform Association.

In the lawsuit, numerous Alabama hospital systems were suing national drug manufacturers, distributors, and retail pharmacies over alleged unreimbursed costs of treating patients with opioid-related conditions. The hospital plaintiffs filed the lawsuit in Conecuh County, where only one hospital has a principal office, no defendant resides, and only a small fraction of the events at issue allegedly occurred. The defendants sought to have the case moved to a proper venue, namely Jefferson County where Birmingham is located.

IADC’s brief highlighted the 30-year effort by the legislature to stop improper forum shopping. During that time, the state’s venue laws were amended specifically to stop joinder from circumventing venue laws. In cases like this, where multiple plaintiffs from around the state seek to join their claims, the consolidated lawsuit cannot be filed in a venue that is proper only for one or some of them. Rather, “venue must be proper as to each and every named plaintiff joined in the action.” The plaintiffs must choose a venue where all of them have a right to bring a case. The IADC brief also discussed recent U.S. Supreme Court decisions and state tort reform laws that have similarly sought to curb the practice of improper forum shopping. 

To read the brief, click here.

For information on the IADC's amicus brief program and to view past briefs, please visit the Amicus Briefs page on the IADC website.

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