Tennessee DAs Ask to Use Drug Dealer Law Against Big Pharma

The Tennessee Supreme Court held a virtual hearing Wednesday over whether district attorneys can sue pharmaceutical companies under the state’s Drug Dealer Liability Act.

(CN) — The Tennessee Supreme Court heard arguments Wednesday over whether district attorneys can treat pharmaceutical companies like illegal drug dealers and sue them for the damage the opioid epidemic wrought in their communities. 

In an hour-long hearing held over Zoom, the five-justice bench considered whether district attorneys have standing to sue under the state’s Drug Dealer Liability Act, or if litigation that has gone on for three years should be dismissed.

Attorney Anthony Franze, who represented the sued drug manufacturers, argued the words of the statute prevent district attorneys from bringing a drug dealer liability lawsuit on their own if they are not representing a party. Meanwhile, Michael Wall, who represented the officials trying to bring the suit against the companies, said district attorneys have the authority to act without anyone else’s permission to bring a variety of lawsuits.

The court’s decision could have major consequences either way. Billions of dollars are on the line, the attorneys for the manufacturers argue. The high court’s decision could also affect manufacturers of other drugs, even one of the state’s top exports: Tennessee whiskey. 

“Whiskey manufacturers selling alcohol—a drug that is legally manufactured and sold in the United States—to licensed distributors would be liable as drug dealers, simply because they ‘know’ that some portion of their whiskey would likely be consumed illegally by someone under the age of 21,” the defendant companies argued in their appellate brief filed last November.

According to the manufacturers, 17 other states have some version of a Drug Dealer Liability Act, a law that makes knowing participants in the illegal drug trade liable for civil damages.

Wall said should the justices rule against the district attorneys, it would mean dismissal of the suit, a delay in addressing the ongoing opioid epidemic and would “cause severe prejudice” to any local government in Tennessee that wishes to bring another suit.

Tennesseans were prescribed painkillers at the third highest rate in the country in 2018, according to the Centers for Disease Control and Prevention.

Last year, almost 5.37 million prescriptions for painkillers were filled in the state with a population of 6.77 million people, according to the Tennessee Department of Health.

But according to Wall, an attorney with Branstetter, Stranch & Jennings, the opioid epidemic has hit eastern Tennessee especially hard.

Wall told the justices the per capita rate for prescription painkillers in Knoxville for the year 2017 was six. About a 75-minute drive south, Cleveland had a per capita prescription rate of eight.

“That means six or eight prescriptions — not just pills, but prescriptions — for every man, woman and child in the city in that year,” Wall said.

According to the state, 1,304 people in Tennessee died from opioid overdoses in 2018.

Wall said the drug manufacturers had the ability to track the flow of drugs down to the pill but continued to send sales representatives into east Tennessee. The district attorneys, Wall said, are often the people dealing with the problem of illegal drugs in their communities and the General Assembly does not want to create “useless and futile” legislation.

“Even in the civil context, there are plenty of Tennessee statutes that allow a district attorney to litigate on behalf of the government, the state of Tennessee even, without asking anyone else’s permission or answering to a higher authority,” Wall said. “Those would be the nuisance statute, for example.”

But Franze, an Arnold and Porter attorney defending the pharmaceutical companies, said the Drug Dealer Liability Act was meant to fill a gap in the law and it was never intended to apply to legitimate business.

Franze told the court only five kinds of entities can bring a suit under the act, and district attorneys are not listed. He added the district attorneys in the case were not asked by their local governments to bring the suits.

“When it comes to statutory interpretation, the words of the statute should matter and not potential ramifications down the road,” Franze said.

Answering questions by Chief Justice Jeffrey Bivins, Franze said the law never expressly exempted manufacturers. Furthermore, no other state with the act on its books exempted manufacturers, although similar laws in other states gave manufacturers authorized to distribute a drug a defense.

There “can be a situation where a lawful distributor out the front door complies with the regulations, follows the lawful market, but out the back door sells to an illegal drug distributor,” Franze said. “And that back-door transaction could be participation in the illegal market. But that’s not what’s alleged here.”

After both sides took 30 minutes to argue their case, Bivins thanked them and the court went into recess before it heard its next case for the day. It is unclear when the justices will rule.

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