Mobile Cnty. Bd. of Health & Family Oriented Primary Health Care Clinic v. Fisher (Ex parte Abbott Labs.)

• Decision Date: 28 May 2021
• Docket Number: 1191001
• Parties: EX PARTE ABBOTT LABORATORIES and Abbott Laboratories, Inc. (In re: Mobile County Board of Health and Family Oriented Primary Health Care Clinic v. Mitchell "Chip" Fisher et al.)
• Court: Alabama Supreme Court

342 So.3d 186

EX PARTE ABBOTT LABORATORIES and Abbott Laboratories, Inc.(In re: Mobile County Board of Health and Family Oriented Primary Health Care Clinic

v.Mitchell "Chip" Fisher et al.)

1191001

Supreme Court of Alabama.

May 28, 2021

Donald C. Radcliff of Brady Radcliff & Brown, LLP, Mobile; and John A. McCauley of Venable, LLP, Baltimore, Maryland, for petitioners.

T. Roe Frazer II of Frazer PLC, Nashville, Tennessee; Mary Beth Mantiply of Mantiply & Assoc., Montrose; and J. Nixon Daniel III of Beggs & Lane, RLLP, Pensacola, Florida, for respondents.

MENDHEIM, Justice.

Abbott Laboratories and Abbott Laboratories, Inc. (collectively referred to as "Abbott"), petition this Court for a writ of mandamus directing the Mobile Circuit Court to dismiss all claims asserted by the Mobile County Board of Health and the Family Oriented Primary Health Care Clinic (collectively referred to as "Mobile Health") against Abbott on the basis that those claims are barred by the rule of repose or by the applicable statute of limitations. We grant the petition and issue the writ.

I. Facts

Because this petition concerns a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., the facts in the complaint¹ 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) )).

The Mobile County Board of Health is the public health department of Mobile County. The Family Oriented Primary Health Care Clinic is "a partnership between Family Oriented Primary Health Care Governing Council, Inc. and the Mobile County Health Department" that "provides comprehensive primary care and preventive care, including health, oral health, mental health, and substance abuse services to persons of all ages, regardless of their ability to pay and regardless of their health insurance status." Abbott Laboratories, Inc., is a subsidiary of Abbott Laboratories; the principal place of business for both is Abbott Park, Illinois.

Mobile Health alleged that Abbott had participated in the marketing of a specific prescription drug, OxyContin. OxyContin is

"the trade name for oxycodone

hydrochloride controlled-release tablets, an opioid analgesic drug. In 1995, the United States Food and Drug Administration (‘FDA’) approved OxyContin for the management of moderate to severe pain where use of an opioid analgesic is appropriate for more than a few days.

"Oxycodone is a morphine-like drug that is highly addictive and is rated as a Schedule II narcotic, a designation given by the government that identifies a prescription medication as having a great potential for abuse. A Schedule II designation also means that the drug, while accepted for medical use, has severe restrictions, and abuse of the drug has a high potential to lead to severe psychological or physical dependence.

"OxyContin is a patented timed-release formula that releases the narcotic incrementally over 12 hours.^[2

^] This formulation distinguishes OxyContin from short-acting medications that must be taken more frequently. Because of the timed-release formulation, OxyContin contains more oxycodone than short-acting opioids."

Howland v. Purdue Pharma L.P., 104 Ohio St. 3d 584, 584, 821 N.E.2d 141, 142-43 (2004).

OxyContin was developed and manufactured by Purdue Pharma ("Purdue").³ With respect to Purdue, the complaint alleged in part that,

"[i]n 2007, Purdue settled criminal and civil charges against it for misbranding OxyContin and agreed to pay the United States $635 million -- one of the largest settlements with a drug company for marketing misconduct. In the same year, Purdue settled with 27 states for its Consumer Protection Act violations regarding Purdue's extensive off-label marketing of OxyContin and Purdue's failure to adequately disclose abuse and diversion risks associated with the drug. None of this stopped Purdue. In fact, Purdue continued to create the false perception that opioids were safe and effective for long-term use, even after being caught using unbranded marketing methods to circumvent the system. In short, Purdue paid the fine when caught and then continued business as usual, deceptively marketing and selling billions of dollars of opioids each year."

The complaint categorized Purdue as a "related entity" to "the Marketing Defendants," one of which is Abbott. Mobile Health alleged that, "[t]hrough a massive marketing campaign premised on false and incomplete information, the Marketing Defendants engineered a dramatic shift in how and when opioids are prescribed by the medical community and used by patients." More specifically, Mobile Health alleged, "[t]he Marketing Defendants relentlessly and methodically -- but untruthfully -- asserted that the risk of addiction was low when opioids were used to treat chronic pain and overstated the benefits and trivialized the risk of the long-term use of opioids." According to Mobile Health, "[t]he Marketing Defendants' goal was simple: dramatically increase sales by convincing doctors to prescribe opioids not only for the kind of severe pain associated with cancer

or short-term postoperative pain, but also for common chronic pain, such as back pain and arthritis." Mobile Health alleged that this marketing campaign "precipitated" an "opioid crisis" in the United States, and specifically in Alabama, because it caused an astronomical increase in the use of opioids by patients who quickly became dependent upon the drugs. In support of this assertion, Mobile Health cited a multitude of statistics in the complaint, including that "[t]he rate of death from opioid overdose has quadrupled during the past 15 years in the United States. Nonfatal opioid overdoses that require medical care in a hospital or emergency department have increased by a factor of six in the past 15 years."

With 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 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 conditions⁵⁰ 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.

"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.

"....

"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. [

...