W. Boca Med. Ctr., Inc. v. Amerisourcebergen Drug Corp. (In re Nat'l Prescription Opiate Litig.)

• Citation: 452 F.Supp.3d 745
• Decision Date: 03 April 2020
• Docket Number: Case No. 1:17-md-2804,MDL 2804
• Parties: IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION This Document Relates To: West Boca Medical Center, Inc. v. AmerisourceBergen Drug Corporation, et al. 1:18-op-45530
• Court: U.S. District Court — Northern District of Ohio

452 F.Supp.3d 745

IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION This Document Relates To: West Boca Medical Center, Inc. v. AmerisourceBergen Drug Corporation, et al. 1:18-op-45530

MDL 2804

Case No. 1:17-md-2804

United States District Court, N.D. Ohio, Eastern Division.

Signed April 3, 2020

OPINION AND ORDER

DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE

Before the Court are three separate motions to dismiss plaintiff West Boca Medical Center, Inc.'s ("West Boca," or the "Hospital") Complaint. Doc. #: 385.¹ Distributors,² Pharmacies,³ and Manufacturers⁴ each filed a group motion, seeking dismissal of West Boca's claims against them.⁵ Doc. #: 684-1 (Distributors); Doc. #: 686 (Pharmacies); Doc. #: 691 (Manufacturers). West Boca filed an omnibus response in opposition that addressed all three motions. Doc. #: 806. Distributors and Pharmacies filed replies in support of their respective motions. Doc. #: 887 (Distributors); Doc. #: 890 (Pharmacies). Manufacturers also filed a reply in support of their motion. Case No. 18-op-45530, Doc. #: 55.⁶

West Boca later filed a notice of supplemental authority, Doc. #: 911, and then (purportedly on behalf of all hospitals whose cases have been transferred into this MDL) filed another notice of supplemental authority ("Second Notice"), Doc. #: 2618. Distributors filed a response to West Boca's second notice. Doc. #: 2681. West Boca filed a reply to Distributors' response, again on behalf of all hospitals in the MDL. Doc. #: 2705. West Boca then filed a third notice of supplemental authority. Case No. 1:18-op-45530, Doc. #: 65.⁷

The Court has reviewed all of the parties' submissions. For the reasons stated below, the Court now rules as follows: Defendants' Motions to Dismiss are GRANTED with respect to Count II (RICO § 1962(a)); Count V (Breach of Implied Warranty); Count VIII (Negligence Per Se); Count IX (Negligent Marketing); and Count X (Negligent Distribution). The motions are otherwise DENIED .

I. Legal Standard for a Motion to Dismiss

The principles governing review of a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) are well-settled, as this Court has previously articulated. See, e.g. , Report and Recommendation ("R&R") on Motions to Dismiss Muscogee (Creek) Nation Claims , Doc. #: 1499 at 2-3; R&R on Motion to Dismiss Summit County Claims , Doc. #: 1025 at 2-3. A court is "required to ‘accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff.’ " Dinwiddie v. Beshear , 2019 WL 4009835, at *2 (6th Cir. Apr. 24, 2019) (quoting Dubay v. Wells , 506 F.3d 422, 426 (6th Cir. 2007) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Federal courts require only "notice pleadings" containing "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Accordingly, "a complaint need not contain ‘detailed factual allegations,’ however, it requires more than ‘labels and conclusion’ or ‘a formulaic recitation of the elements of a cause of action.’ " Dinwiddie , 2019 WL 4009835, at *2 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Rule 8 "demands more than an unadorned, the-defendant-harmed-me accusation," and a complaint will not "suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

A complaint will survive a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Deciding if a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. A district court may dismiss a complaint for failure to state a claim "only if it's clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Trollinger v. Tyson Foods, Inc. , 370 F.3d 602, 615 (6th Cir. 2004) (quoting Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ); Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ).

II. Factual Allegations

In its Complaint, West Boca asserts the following claims:

• Count I, Violation Of RICO,⁸ 18 U.S.C. 1961, et seq . – Opioid False Narrative Enterprise (Against All Defendants);

• Count II, Violation Of RICO, 18 U.S.C. § 1962(a) & (d) (Against All Defendants);

• Count III, Violation Of Florida's Deceptive And Unfair Trade Practices Act ( Fla. Stat. Ann. § 501.201, et seq . ) (Against All Defendants);

• Count IV, Fraudulent Practices – Misleading Advertising, Florida Statutes Title XLVI, Crimes § 817.41 (Against Marketing Defendants);⁹

• Count V, Breach of Implied Warranty of Fitness For a Particular Purpose ( Fla. Stat. Ann. §§ 672.315 and 672.11, et seq .) (Against All Defendants);

• Count VI, Negligence (Against All Defendants);

• Count VII, Wanton Negligence (Against All Defendants);

• Count VIII, Negligence Per Se (Against All Defendants);

• Count IX, Negligent Marketing (Against Marketing Defendants);

• Count X, Negligent Distribution (Against All Defendants);

• Count XI, Nuisance (Against All Defendants); and

• Count XII, Unjust Enrichment (Against All Defendants). Many of the factual allegations that pertain to the Defendants' alleged behavior are the

same as those alleged in the complaints filed in the (i) Summit County , (ii) Muscogee (Creek) Nation , and (iii) Blackfeet Tribe cases.¹⁰ See Doc. ##: 514; 731; 6.¹¹ The Magistrate Judge and this Court have addressed those factual allegations at length. See Summit County R&R , Doc. #: 1025; Muscogee Nation R&R , Doc. #: 1499; Blackfeet Tribe R&R , Doc. #: 1500; Opinion and Order on Summit County , Doc. #: 1203; Opinion and Order on Tribe Cases , Doc. #: 1680. Thus, the Court only provides below a brief overview of the factual allegations specific to West Boca, and incorporates by reference the general factual circumstances surrounding the opioid crisis and the allegations of Defendants' behavior that are common to the cases addressed in the aforementioned R&Rs and Orders.

A. Factual Allegations Against Defendants

Plaintiff, West Boca Medical Center, is a 195-bed, acute-care hospital located in Palm Beach County, Florida, which includes a pharmacy, emergency room ("ER"), and a 35-bed Neonatal Intensive Care Unit ("NICU"). West Boca also operates a separate ER facility in Broward County, Florida. Doc. #: 385 at ¶20.

West Boca alleges that the Manufacturer Defendants, also referred to as "Marketing Defendants," manufacture, sell, and market prescription opioid painkillers and fueled the opioid crisis "through a massive marketing campaign premised on false and incomplete information," which engineered a "dramatic shift in how and when opioids are prescribed by the medical community and used by patients." Doc. #: 385 at ¶15. West Boca alleges the Marketing Defendants dramatically increased sales of prescription opioids despite their knowledge "that opioids were addictive and subject to abuse, and that their other claims regarding the risks, benefits, and superiority of opioids for long-term use were untrue and unfounded." Doc. #: 385 at ¶16.

West Boca also alleges that the Distributor and Pharmacy Defendants, also referred to as "Supply Chain Defendants," "participated in the conspiracy by ignoring their legal responsibilities under the Controlled Substance Act, and flooded affected areas with opioids well knowing they were contributing to, but profiting from, widespread addiction and human misery." Doc. #: 385 at ¶17. West Boca further alleges that Marketing and Supply Chain Defendants "extract billions of dollars of revenue from the addicted American public while tens of millions of dollars of injury are caused to hospitals as the reasonably foreseeable consequences of the prescription opioid epidemic." Doc. #: 385 at ¶19.

West Boca further alleges that hospitals in Southern Florida, where it is located, have been hit especially hard by the opioid crisis. West Boca alleges that, prior to 2009, Florida's medical laws allowed physicians to prescribe and dispense opioids from their offices, with no prescription-monitoring system in place. Doc. #: 385 at ¶30. West Boca cites to statistics showing that "[b]y 2009, of the top oxycodone-prescribing counties in American, nine were in Florida...Broward County had four pain clinics in 2007 and 115 two years later." Doc. #: 385 at ¶30. West Boca also provides statistics showing that "[i]n 2009, 25% of nationwide shipments of oxycodone were sent to the state of Florida. By 2010, 98 of the 100 doctors in the country who dispensed the highest quantities of oxycodone from their offices were located in Florida." Doc. #: 385 at ¶31. West Boca further provides statistics regarding the costs of this epidemic, showing that in 2015, "health care costs related to opioid abuse in Florida reached $1,246,526,068.00." Doc. #: 385 at ¶38.

B. Facts Specific to Hospitals

In its Complaint, West Boca alleges that hospitals, such as itself, and especially those in south Florida, have been negatively impacted by the opioid crisis in at least three ways. First, West Boca alleges that hospitals must provide un- or under-compensated medical treatment to victims of the opioid crisis, at great expense to hospitals. Under various state and federal laws, hospitals are required to provide care to all patients who come in with any medical condition, including...