Ex parte Cardinal Health, Inc. . PETITION FOR WRIT OF MANDAMUS: CIVIL ( 2023 )

Rel: March 17, 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
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
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Ex parte Cardinal Health, Inc., et al.
PETITION FOR WRIT OF MANDAMUS
(In re: DCH Health Care Authority et al.
v.
Purdue Pharma, L.P., et al.
and
Fort Payne Hospital Corporation et al.
v.
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McKesson Corporation et al.)
(Conecuh Circuit Court: CV-19-7 and CV-21-900016)
PER CURIAM.
PETITION DENIED. NO OPINION.
Parker, C.J., and Wise, Bryan, Mendheim, Stewart, and Mitchell,
JJ., concur.
Shaw, J., dissents.
Sellers, J., dissents, with opinion.
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SELLERS, Justice (dissenting).
The petitioners, each of whom is a defendant in at least one of two
consolidated actions below, are manufacturers, marketers, distributors,
or dispensers of prescription opioid medications. 1 They, along with other
defendants, are accused of creating a public nuisance in the form of an
opioid epidemic. The Conecuh Circuit Court ("the trial court") denied the
petitioners' motions to dismiss the actions pursuant to § 6-5-440, Ala.
Code 1975, commonly known as Alabama's abatement statute. I
respectfully dissent from the majority's refusal to issue a writ of
mandamus directing the trial court to grant the motions to dismiss.
Before these actions were commenced, several Alabama counties
had commenced actions involving the petitioners in federal district courts
in Alabama ("the federal actions"). Like the complaints in the underlying
actions, the complaints in the federal actions set out claims accusing the
1The petitioners are Cardinal Health, Inc.; Teva Pharmaceuticals
USA, Inc; Cephalon, Inc.; Watson Laboratories, Inc.; Actavis LLC;
Actavis Pharma, Inc.; Endo Pharmaceuticals Inc.; Endo Health Solutions
Inc.; Johnson and Johnson; Janssen Pharmaceuticals, Inc; Allergan
Finance, LLC; Allergen Sales, LLC; Allergen USA, Inc.;
AmerisourceBergen Drug Corporation; CVS Pharmacy, Inc.; CVS
Indiana, L.L.C.; Walmart Inc.; Wal-Mart Stores East, LP; Noramco, Inc.;
and McKesson Corporation.
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petitioners and other defendants of creating a public nuisance in the form
of an opioid epidemic. In the federal actions, the counties asserted that
the petitioners had contributed to the opioid epidemic and had harmed
the public health by improperly marketing prescription opioids and by
oversupplying local communities with prescription opioids. The counties
claimed responsibility for the public health, safety, and welfare of their
residents and sought to abate the public-health hazard caused by the
opioid epidemic and to recover expenses incurred as a result of the
epidemic, including medical-care costs, addiction-treatment and welfare
costs, law-enforcement costs, and judicial costs. For purposes of pretrial
proceedings, the federal actions were consolidated with other similar
federal cases in the United States District Court for the Northern District
of Ohio.
In September 2019, after the federal actions had been commenced,
numerous public health-care authorities that operate hospitals in
Alabama commenced an action in the trial court, making factual
allegations against opioid marketers, distributors, and suppliers
substantially similar to those made by the counties in the federal actions;
that action was assigned case no. CV-19-7 and named as defendants,
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among others, each of the petitioners except McKesson Corporation (see
note 1, supra). Like the counties, the health-care authorities sought to
abate the alleged public nuisance caused by prescription-opioid abuse
and to recover costs associated with treating opioid-related conditions.
Later, in March 2021, a second substantially similar action was initiated
in the trial court by more public health-care authorities; that action was
assigned case no. CV-21-900016 and named as defendants, among others,
each of the petitioners (see note 1, supra). The two Conecuh County
actions were consolidated by the trial court. The plaintiffs in one or the
other of the Conecuh County actions include, among others, the DCH
Health Care Authority, the Health Care Authority of Clarke County, the
Bibb County Healthcare Authority, the Dale County Health Care
Authority, the Greene County Hospital Board, and the Geneva County
Health Care Authority, each of whom is a respondent to the mandamus
petition. These health-care authorities are intertwined with the counties
in which they operate. See, e.g., § 22-21-313, Ala. Code 1975 (allowing a
health-care authority to incorporate with the approval of a county); § 22-
21-338, Ala. Code 1975 (authorizing counties to designate health-care
authorities as agencies of counties "to acquire, construct, equip, operate
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and maintain public hospital facilities" within the counties). Certificates
of incorporation indicate that the board members of the health-care
authorities are chosen, at least in part, by the governing bodies of the
counties.
The petitioners moved to dismiss the Conecuh County actions to the
extent that the claims asserted against them in those actions arose from
alleged harm occurring in counties that are plaintiffs in one of the federal
actions. The petitioners argued that the claims asserted against them in
the Conecuh County actions are duplicative of the claims asserted
against them by the counties in the federal actions and are therefore
prohibited by the abatement statute. The trial court denied the motions
to dismiss, and the petitioners filed their mandamus petition.
The abatement statute prohibits a plaintiff from "prosecut[ing] two
actions in the courts of this state at the same time for the same cause and
against the same party." § 6-5-440. For purposes of abatement, courts
of this state include federal district courts in Alabama. Weaver v. Hood,
577 So. 2d 440, 442 (Ala. 1991). 2
2I do not find persuasive the respondents' argument that the federal
actions are not subject to the abatement statute simply because they have
been temporarily transferred to a multidistrict-litigation proceeding in
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The federal actions and the Conecuh County actions involve the
"same cause" because the claims in those actions "arose from the same
underlying operative facts." Ex parte Compass Bank, 77 So. 3d 578, 581
(Ala. 2011). The plaintiffs in each action allege that the petitioners,
among other defendants, harmed the public by oversupplying
prescription opioids and by downplaying the risks of opioids.
Although the counties in the federal actions and the public health-
care authorities in the Conecuh County actions technically are separate
entities, § 6-5-440 applies as long as the plaintiffs share a sufficient
"identity of interest." See Ex parte Boys & Girls Clubs of S. Alabama,
Inc., 163 So. 3d 1007, 1015 (Ala. 2014) (plurality opinion). In my view,
the counties in the federal actions share an identity of interest with the
health-care authorities in the Conecuh County actions because each
plaintiff seeks remedies for damages the opioid epidemic caused to the
public in that plaintiff's respective county. The health-care authorities
provide health-care services in their counties, and in the federal actions
Ohio for pretrial matters. The federal actions were commenced in
Alabama, and, once pretrial proceedings are concluded, they will be
transferred back to Alabama for further prosecution. See 28 U.S.C. §
1407(a).
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the counties seek to recover for increased health-care costs caused by the
petitioners' and others' allegedly "flooding" the counties with prescription
opioids. In other words, the plaintiffs in each of the actions seek to
remedy the same societal problem plaguing the same communities. As
stated by the petitioners, the counties and the health-care authorities
share a common mission, namely, "to promote public health in the
Counties." Petition at 22.
If the petitioners' motions to dismiss filed in the Conecuh County
actions are not granted, they will be forced to defend against the "same
case" multiple times and will face the possibility of inconsistent rulings
and double recovery, which are the very problems § 6-5-440 seeks to
avoid. Accordingly, I would grant the petition for a writ of mandamus.
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