Drug companies are trying to move Portland’s lawsuit over the opioid crisis to a federal court in Ohio — a maneuver lawyers for the city call a stalling tactic.
Last week, AmerisourceBergen Corp., one of dozens of defendants in Portland’s suit, entered a legal motion removing the case from Cumberland County Superior Court, where it was filed in May.
On Friday, the pharmaceutical distributor and two similar companies asked a federal judge in Maine to put the case on hold while a panel of judges considers consolidating it with hundreds of similar suits being heard in Ohio.
The city is challenging these moves in its effort to keep the case over the mounting financial and human toll of the opioid crisis in a state court. It’s among many similar jurisdictional battles playing out nationally and appears to shed light on how drug companies are fighting hundreds of lawsuits over their alleged role in a national public health crisis.
“This is nothing but a delay tactic by the opioid companies to have the city of Portland’s case transferred to a federal court in Ohio,” Paul Napoli and James Belleau, lawyers from the two firms representing the city, said in a statement Thursday. “If this case is transferred to Ohio, the residents of Portland will suffer.”
Lawyers for AmerisourceBergen Corp., which is represented in the case by Pierce Atwood LLP, did not respond to questions. The $18 billion company argues in court documents that Portland’s case raises questions under federal law. It said that moving it to Ohio would promote “judicial efficiency,” and protect drug companies from “unwarranted hardships” and the “the risk of inconsistent decisions.”
In Ohio, a federal judge is seeking to bring more than 1,000 cases against opioid manufacturers to speedy settlem ents that he hopes will provide solutions for areas hard hit by overdose deaths. But Portland’s lawyers want to fight the case on home turf and worry the city’s suit will end up at the bottom of the mountain of case files in a multidistrict litigation that could be delayed for years.
Portland has asked Magistrate Judge John Nivison to move the case back to state court, rather than shipping it to the Midwest. But AmerisourceBergen argued Friday that it could be sent to Ohio first and that a judge there could rule on the request to keep it in state court.
The decision over shifting the case between the state to federal courthouse in Portland seems to turn on whether the city’s lawsuit is truly grounded in Maine law.
In its suit, Portland contended that AmerisourceBergen Corp. and others are liable under state law. But the drug company argues that this claim is underpinned by law made in Washington, D.C., and therefore rightfully belongs before a federal judge.
In its filings, AmerisourceBergen’s attorneys represents Portland’s claims as being based, in part, on the federal Controlled Substances Act’s requirement that drug companies monitor and stop suspicious shipments of pharmaceuticals.
The city’s lawyers reject this characterization in their request to move the case back to state court, writing that suit is solely rooted in Maine law. They further argue that AmerisourceBergen cannot claim that the Controlled Substances Act is the basis for the city’s suit because the company has held in other cases that the federal law does not create this sort of liability at all.
“Talking out of both sides of their mouths depending on the venue should not be the rewarded,” Belleau wrote in the court filing.
It is unclear whether Nivison will address the motion to pause the case or the request to move it back to state court first.
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