Ex parte McKesson Corporation PETITION FOR WRIT OF MANDAMUS (In re: Fort Payne Hospital Corporation v. McKesson Corporation) (Conecuh Circuit Court: CV-21-900016).
Date Filed2023-12-22
DocketSC-2023-0289
JudgePer Curiam
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
Rel: December 22, 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 errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2023-2024
_________________________
SC-2023-0289
_________________________
Ex parte McKesson Corporation et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Fort Payne Hospital Corporation et al.
v.
McKesson Corporation et al.)
(Conecuh Circuit Court: CV-21-900016)
PER CURIAM.
The petitioners -- McKesson Corporation, AmerisourceBergen Drug
Corporation, Cardinal Health, Inc., H.D. Smith, LLC, and Henry Schein,
Inc. -- petition this Court for a writ of mandamus directing the Conecuh
SC-2023-0289
Circuit Court to vacate its March 20, 2023, order denying their motion to
dismiss the claims asserted against them by the plaintiffs -- Fort Payne
Hospital Corporation, the Bibb County Healthcare Authority, the Dale
County Health Care Authority, Greene County Hospital Board, Jackson
Hospital & Clinic, Inc., Escambia County Alabama Community
Hospitals, Inc., Mizell Memorial Hospital, Inc., the Tombigbee Health
Care Authority, Geneva County Health Care Authority, Community
Hospital, Inc., the Sylacauga Health Care Authority, Russellville
Hospital, Inc., Lakeland Community Hospital, Inc., Monroe County
Healthcare Authority, Infirmary Health Hospitals, Inc., Gulf Health
Hospitals, Inc., Mobile Infirmary Association, the DCH Health Care
Authority, the Healthcare Authority for Baptist Health, Medical West
Hospital Authority, Evergreen Medical Center, LLC, Gilliard Health
Services, Inc., Crestwood Healthcare, L.P., Triad of Alabama, LLC, QHG
of Enterprise, Inc., Affinity Hospital, LLC, Gadsden Regional Medical
Center, LLC, Foley Hospital Corporation, the Health Care Authority of
Clarke County, BBH PBMC, LLC, BBH WBMC, LLC, BBH SBMC, LLC,
BBH CBMC, LLC, and BBH BMC, LLC -- and to enter an order
2
SC-2023-0289
dismissing the plaintiffs' claims with prejudice on the ground that those
claims are barred by the applicable statutes of limitations.
Facts and Procedural History
"Because this petition concerns a motion to dismiss
under Rule 12(b)(6), Ala. R. Civ. P., the facts in the complaint
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)))." Ex parte Abbott Lab'ys,342 So. 3d 186
, 188 (Ala. 2021) (footnote omitted).
The plaintiffs are 34 entities that own or operate hospitals in
Alabama. On March 26, 2021, the plaintiffs commenced this action in
the Conecuh Circuit Court against various manufacturers of prescription
opioids ("the manufacturing defendants"), various distributors of
prescription opioids ("the distributor defendants"), and various retail
pharmacies ("the pharmacy defendants") (collectively referred to as "the
defendants"). The distributor defendants included AmerisourceBergen
Drug Corporation, Anda, Inc., Cardinal Health, Inc., H.D. Smith, LLC,
3
SC-2023-0289
Henry Schein, Inc., and McKesson Corporation.1 In their initial
complaint, the plaintiffs alleged, in pertinent part:
"1. Plaintiffs operate hospitals that provide acute care
throughout Alabama including treatment for opioid-
dependent patients suffering from opioid-related conditions.
These patients routinely seek services at Plaintiffs'
emergency rooms and occupy beds in the Plaintiffs' Hospitals.
Hospitals are legally and morally compelled to act and treat
all of these patients, regardless of the price.
"2. Defendants are the manufacturers, distributors, and
dispensers of prescription opioids. By flooding Plaintiffs'
communities with opioids, by pushing false narratives
surrounding the safety of opioids, and by failing to take steps
to prevent diversion of opioids, they have created an epidemic
of misuse, abuse, addiction, and death."
(Footnote omitted.) The plaintiffs also alleged that "[t]he average cost of
providing care for patients diagnosed with opioid use disorder is eight
times higher than for those without opioid use disorder"; that those
patients must still be provided with complete care; and that "private and
government insurance does not cover these increased costs." (Footnote
omitted.) In their initial complaint, the plaintiffs further alleged that the
opioid pandemic constituted a continuous and abatable public nuisance.
1Although Anda was initially a party to this mandamus petition, it
filed a motion to withdraw as a petitioner on July 11, 2023. On July 19,
2023, this Court granted Anda's motion. Therefore, we have omitted any
specific allegations relating to Anda.
4
SC-2023-0289
The plaintiffs stated claims of negligence, wantonness, public nuisance,
unjust enrichment, fraud and deceit, and civil conspiracy.
On September 8, 2022, the pharmacy defendants filed a motion to
dismiss the plaintiffs' claims against them pursuant to Rule 12(b)(6), Ala.
R. Civ. P., which the trial court denied. The pharmacy defendants
subsequently filed a petition for a writ of mandamus in this Court, which
was docketed as case number 1210329. This Court ordered answers and
briefs. However, the plaintiffs subsequently filed a motion to dismiss the
pharmacy defendants' petition as moot. In their motion to dismiss, they
asserted that they had filed a motion to dismiss their claims against the
pharmacy defendants and that the trial court had granted that motion.
On April 26, 2022, this Court granted the plaintiffs' motion and dismissed
the petition in case number 1210329.
On September 27, 2022, the plaintiffs filed their amended
complaint against the manufacturing defendants and the distributor
defendants (collectively referred to as "the remaining defendants"). In
their amended petition, the plaintiffs restated the allegations quoted
above from the initial complaint and alleged that the actions of the
remaining defendants had created an opioid epidemic and that, "[in]
5
SC-2023-0289
addition to the cost of the opioid drugs themselves, the opioid epidemic
has caused hospitals to incur and continue to suffer an extensive
operational impact on their ability to do their jobs -- rendering care to all
members of the communities they serve." In their amended complaint,
they stated claims of negligence, wantonness, public nuisance, unjust
enrichment, fraud and deceit, and civil conspiracy against the remaining
defendants. In the section of the amended complaint setting forth the
parties, the plaintiffs included the following factual allegations regarding
the distributor defendants:
"2. Distributor Defendants
"107. The Distributor Defendants are described below.
At all relevant times, the Distributor Defendants have
distributed, supplied, sold, and placed into the stream of
commerce prescription opioids, without fulfilling the
fundamental duty of wholesale drug distributors to detect and
prevent diversion of dangerous drugs for non-medical
purposes. The Distributor Defendants universally failed to
comply with Alabama law, under which they are 'wholesaler
distributors.' Plaintiffs allege that the Distributor
Defendants' unlawful conduct is a substantial cause of the
volume of prescription opioids plaguing Plaintiffs'
communities.
"a. AmerisourceBergen
"108. Defendant AmerisourceBergen Drug Corporation
(“AmerisourceBergen”) is a Delaware corporation with its
principal place of business in Chesterbrook, Pennsylvania.
6
SC-2023-0289
"109. AmerisourceBergen is a wholesaler of
pharmaceutical drugs and distributes opioids throughout the
country, including in Alabama. AmerisourceBergen is the
eleventh largest company by revenue in the United States,
with annual revenue of $147 billion in 2016.
"110. According to its 2016 annual report,
AmerisourceBergen is 'one of the largest global
pharmaceutical sourcing and distribution services companies,
helping both healthcare providers and pharmaceutical and
biotech manufacturers improve patient access to products and
enhance patient care.'
"111. Between 2006 and 2014, AmerisourceBergen
distributed the second highest number of hydrocodone and
oxycodone pills into Alabama and into Conecuh County. It
distributed 282,139,350 pills into the state, 2,982,040 of which
went to Conecuh County. Although the ARCOS [Automated
Reports and Consolidated Ordering System] data from which
this information is drawn has only been made publicly
available through 2014, AmerisourceBergen continues to
distribute prescription opioids into Alabama to the present
day.
"112. AmerisourceBergen currently holds a Wholesale
Distributor license from the Alabama Board of Pharmacy as
well as a license to distribute controlled substances in
Alabama. It continues to use this license to distribute
pharmaceuticals, including controlled substances, into
Alabama.
"113. As described in this complaint,
AmerisourceBergen has had multiple instances in which it
has inappropriately distributed controlled substances. From
this pattern of instances, it can be inferred that
AmerisourceBergen's policies and procedures have failed to
adapt and change in order to prevent the future diversion of
7
SC-2023-0289
prescription opioids. On that basis, Plaintiffs allege on
information and belief that AmerisourceBergen continues to
operate in ways that enable the diversion of prescription
opioids.
"114. On July 26, 2021, [AmerisourceBergen] paid a
$5,000 fine to the Alabama Board of Pharmacy for violations
arising out of its 2019 conduct in Florida of distributing
prescription drugs, including controlled substances, without a
proper license to do so.
"115. [AmerisourceBergen] continues to make false or
misleading statements about its involvement in the
promotion of prescription opioids and its contribution to the
ongoing opioid epidemic. [AmerisourceBergen] falsely claims
on its website that it 'take[s] no action whatsoever to promote
prescribing or otherwise increase demand for opioids.'
"….
"c. Cardinal
"121. Defendant Cardinal Health, Inc. ('Cardinal') is an
Ohio corporation with its principal place of business in
Dublin, Ohio. In 2016, Cardinal generated revenues of
$121.5 billion.
"122. Cardinal is a global distributor of pharmaceutical
drugs and medical products. It is one of the largest
distributors of opioids in the United States. From 2006 to
2014, Cardinal was the third largest distributor of opioids in
Alabama.
"123. In December 2013, Cardinal formed a ten-year
agreement with CVS Caremark to form the largest generic
drug sourcing operation in the United States.
8
SC-2023-0289
"124. Cardinal currently holds a Wholesale Distributor
license from the Alabama Board of Pharmacy as well as a
license to distribute controlled substances in Alabama. It
continues to use this license to distribute pharmaceuticals,
including controlled substances, into Alabama.
"125. As described in this complaint, Cardinal has had
multiple instances in which it has inappropriately distributed
controlled substances. From this pattern of instances, it can
be inferred that Cardinal's policies and procedures have failed
to adapt and change in order to prevent the future diversion
of prescriptive opioids. On that basis, Plaintiffs allege on
information and belief that Cardinal continues to operate in
ways that enable the diversion of prescription opioids.
"d. H.D. Smith
"126. Defendant H.D. Smith, LLC f/k/a H.D. Smith
Wholesale Drug Co. ('H.D. Smith') through its various DEA
[Drug Enforcement Administration]-registered subsidiaries
and affiliated entities, is a wholesaler of pharmaceutical
drugs that distributes opioids throughout the United States,
including in Alabama and the communities served by
Plaintiffs. H.D. Smith is a privately held independent
pharmaceuticals distributor of wholesale brand, generic, and
specialty pharmaceuticals and is a Delaware corporation with
its principal place of business in Illinois. H.D. Smith
Wholesale Drug Co. has been restructured and is currently
doing business as H.D. Smith, LLC. H.D. Smith, LLC's sole
member is H.D. Smith Holdings, LLC, and its sole member is
H.D. Smith Holding Company, a Delaware corporation with
its principal place of business in Illinois. H.D. Smith is the
largest independent wholesaler in the United States. In
January 2018, Defendant AmerisourceBergen acquired H.D.
Smith.
"127. Prior to its acquisition by AmerisourceBergen and
at least through March 29, 2019, H.D. Smith held a Wholesale
9
SC-2023-0289
Distributor license from the Alabama Board of Pharmacy as
well as a license to distribute controlled substances in
Alabama. It used this license to distribute pharmaceuticals,
including controlled substances, into Alabama.
"128. In 2016, H.D. Smith entered into a settlement with
West Virginia, agreeing to pay $3.5 million to resolve an
action alleging that the company contributed to the state's
opioid addiction epidemic by negligently distributing opioids.
"129. H.D. Smith's shipments to West Virginia were so
extensive that the [United States] House [of Representatives']
Energy and Commerce Committee wrote to H.D. Smith in
2018, citing DEA data showing 2008 sales of 1.1 million
hydrocodone doses to Family Discount Pharmacy in Mount
Gay-Shamrock, a West Virginia town home to only 1,800
people. That same year, H.D. Smith sold more than 1.3
million hydrocodone and oxycodone to a Sav-Rite Pharmacy
in Kermit, West Virginia, a town with a population of 406.
Between 2007 and 2008, H.D. Smith also sold 5 million
hydrocodone pills to pharmacies in Williamson, West
Virginia, where approximately 3,000 people lived.
Representatives from both parties were concerned about the
volume of opioids H.D. Smith was distributing to West
Virginia: 'Data provided to the committee by the Drug
Enforcement Administration raises ... questions regarding
H.D. Smith's efforts to monitor for, and mitigate, controlled
substance diversion in West Virginia.'
"130. In 2019, in the MDL [multidistrict-litigation]
proceeding styled In re: National Prescription Opiate
Litigation, H.D. Smith and certain other smaller distributors
filed a motion for summary judgment styled 'Non-RICO Small
Distributors' Motion for Summary Judgment Based on their
De Minimis Status (DKT # 1879).' In opposing the motion,
the factual record presented by the plaintiffs (two Ohio
municipalities) relating to H.D. Smith consisted of a subset of
the information enumerated in this Complaint. The MDL
10
SC-2023-0289
court denied the motion for summary judgment as to all of the
moving defendants, including H.D. Smith.
"131. H.D. Smith executives were active in industry
groups such as HDA [the Healthcare Distribution Alliance],
HDMA [the Healthcare Distribution Management
Association], and PCF [the Pain Care Forum] (via HDA's
membership).
"132. J. Christopher Smith, while President and COO,
was an active member of HDMA, serving as Co-Chair of its
Industry Relations Counsel. Ron Lanton, Government Affairs
Counsel, was a member of HDMA's Government and Public
Policy Counsel. Thomas Doyle, Executive Vice President,
Commercial Solutions, was part of HDMA's Specialty &
Biotech Distributors Council. Dale Smith, President of H.D.
Smith, appears to be an active member of HDA. On HDA's
website, he is identified as HDA Vice Chairman and was
Chairman and CEO of HAD's Board of Directors and
Executive Committee (as of Nov. 2015), having also served on
HDA's Government and Public Policy Council and Industry
Relations Council. Dale Smith, President of H.D. Smith, was
Vice Chairman, Chairman, and CEO of HDA's Board of
Directors and Executive Committee, and also served on
HDA's Government and Public Policy Council and Industry
Relations Council.
"133. When distributing prescription opioids, H.D.
Smith had a duty to prevent diversion by implementing an
effective system to detect and halt suspicious orders and by
conducting regular investigations of current and prospective
customers. But H.D. Smith's policies and procedures for
monitoring pharmaceutical orders have long been
insufficient, which has allowed opioid diversion in Maine for
an extensive period of time.
"134. From 2006 to 2008, H.D. Smith's SOM [suspicious-
order-monitoring] program was manual, rather than
11
SC-2023-0289
automated. H.D. Smith had two undated and little-used
written policies covering suspicious order monitoring. Few
employees of H.D. Smith knew these policies existed.
"135. Starting in 2006, H.D. Smith began working on an
automated compliance system, but this 'system' was never
really a viable automated system, just iterations and
attempts.
"136. In or around 2008, H.D. Smith began developing a
computer-based suspicious-order-monitoring program, which
H.D. Smith called 'CSOMP.' CSOMP had multiple flaws that
undermined its purpose of detecting and reporting suspicious
orders.
"137. First, H.D. Smith's suspicious-order-monitoring
reports, which might have identified suspicious orders, were
not reviewed until after the flagged orders had been shipped.
"138. Second, CSOMP did not consider opioid order
pattern or frequency. H.D. Smith's SOM program permitted
automated release of any and all orders by new pharmacies
during a 90- to 120-day period, allowing them to 'ramp up,'
even when they exceeded order volume limits.
"For instance, in a May 21, 2008 internal email, George
Euson ('Euson'), Director of Corporate Security, wrote to H.D.
Smith employees regarding CSOMP enhancements: 'You are
allowed to release all orders that show up in the system for
new accounts for up to 120 days after the start date listed.
This will allow ramp up of new accounts.' When opioid orders
neared threshold limits, the orders were still released without
further investigation or reporting, allowing the customer to
build a high-volume-sales 'history.' In fact, in order to avoid
reporting a suspicious order to the DEA, H.D. Smith would
notify customers when they approached their threshold
limits, allowing customers to request threshold increases and
avoid triggering thresholds. Additionally, those thresholds
12
SC-2023-0289
for reporting were based on the client's prior sales. So, if a
client spent more, their limit could be reset to that higher
point.
"139. Issues with CSOMP requiring modifications and
fixes to address broken functionality continued until at least
February 2015. These issues included stopping only one large
controlled drug order at a time for review, while allowing a
smaller order for the same customer to be filled while larger
order was being reviewed; allowing 448 people within H.D.
Smith to release holds in CSOMP; having a lack of tools to
detect orders of unusual frequency or pattern; and having
multiple accounts assigned to one customer or DEA number,
each of which was assigned thresholds (i.e., 3 accounts; 3x the
threshold limit for that customer).
"140. H.D. Smith was aware of deficiencies with its
SOM, and management deliberately tried to hide this
knowledge.
"141. An H.D. Smith employee with responsibilities for
CSOMP monitoring who resigned in February 2015 explained
her concerns with H.D. Smith's SOM system in her exit
interview. At the time of the interview, Lori Kirbach stated
as a main reason for leaving, 'the company is and has been
breaking the law for some time.' She did not understand why
this was being tolerated. Specifically, Ms. Kirbach stated that
'CSOMP has not been working correctly since OPUS Go Live
and that no one will listen to them when they bring it up.
Compliance is releasing orders that they should not be
releasing.' She added that the 'DEA is about two years behind
in looking at CSOMP data and it[']s only a matter of time
before they catch up to us and questions are asked.' Ms.
Kirbach also added that her manager 'often said not to put
certain issues (such as the CSOMP issue) in email so in the
event the company is ever sued and the email is produced'
other employees could 'deny any knowledge.' She recalled
13
SC-2023-0289
getting her 'ass chewed' by her manager, Tom, for putting
something in an email that he thought she shouldn't have.
"142. Other H.D. Smith employees have also admitted
its SOM program was insufficient. For example, Euson wrote
an email on September 28, 2007 regarding a list of suspicious
pharmacies he had circulated internally in February 2006 and
an updated list of suspicious pharmacies in May 2007. The
listed pharmacies had been identified as suspicious by other
wholesalers and the DEA due to 'excess purchases of
controlled substances.' Two of the DEA's suspicious
pharmacies had also been identified by H.D. Smith as one of
nine pharmacy customers comprising 80% of H.D. Smith's
Florida distribution of oxycodone. One, Pharmcore, was a
customer at the time of the February 2006 email. The other,
Pharmacy Express, was set up as a customer in December
2006. According to Euson: 'Both have huge and excessive
amounts of controlled substance purchases.' He continued,
'We will have a hard time explaining to DEA why after we
were warned nearly 1 1/2 years ago, we continued to sell
excessive quantities of CS [controlled substances] to these
businesses.'
"143. Another H.D. Smith employee, P.J.
VanderMeersch, Compliance Specialist, wrote in September
2013 about her serious concerns with H.D. Smith's CSOMP:
'we are absolutely not compliant with Federal Regulations
and we know we aren't.'
"144. As recently as 2014, in a PowerPoint presentation
regarding Compliance and Security, the Compliance
Department noted the need to develop CSOMP enhancements
to meet DEA standards.
"145. An H.D. Smith employee wrote an email in July
2014 noting that CSOMP program issues had 'resulted in
customers receiving products which they were not supposed
to.' As a result of these shortfalls, H.D. Smith shipped 17
14
SC-2023-0289
bottles of oxycodone to one customer who was not supposed to
be able to order any.
"146. In or around 2014, H.D. Smith hired a new
compliance officer and began to create an improved CSOMP
program that would comply with applicable laws. However,
before any enhancements went into effect, that new
compliance officer was terminated in 2016.
"147. On May 31, 2016, H.D. Smith rehired their former
Vice President of Compliance.
"148. At a May 8, 2018 hearing before the House Energy
and Commerce subcommittee, H.D. Smith refused to take any
responsibility for the massive amounts of opioids it shipped to
West Virginia, the state which at the time had the highest
overdose rate in the United States. At this time, J.
Christopher Smith, former President and CEO, stated, 'H.D.
Smith conducted itself responsibly and discharged its
obligations.'
"149. The implication that H.D. Smith has effectively
addressed diversion is false, as H.D. Smith's repeated
payments to settle diversion-related violations indicate.
"150. H.D. Smith's public statements misled the public,
including Plaintiffs, into believing that H.D. Smith was
taking effective steps to fight the opioid epidemic.
"151. Although Plaintiffs allege the dates of particular
enforcement actions and other admissions or evidence of
failures to prevent diversion, Plaintiffs do not allege that H.D.
Smith ceased conduct that contributed to the opioid epidemic
upon the last date of such an action, admission, or evidence.
"152. The fact that H.D. Smith had a pattern of
violations resulting in a series of enforcement actions and a
pattern of conduct evincing a failure to devise effective
15
SC-2023-0289
procedures according with its role as a distributor of
controlled substances provides grounds to infer that despite
its promises to improve its policies and procedures so as to
prevent the diversion of prescriptions opioids (and so
contributing to the opioid epidemic in Alabama), H.D. Smith
failed to do so and, in fact, on information and belief,
continues to operate in ways that enable the diversion of
prescription opioids.
"e. Henry Schein
"153. Defendant Henry Schein, Inc. ('Henry Schein') is
incorporated in Delaware with its principal place of business
located in Melville, New York.
"154. Henry Schein describes its business as providing
products and services to integrated health systems in the non-
acute care space and distributes, among other things, branded
and generic pharmaceuticals to customers that include dental
practitioners, dental laboratories, animal health practices
and clinics, office-based medical practitioners, and
ambulatory surgery centers. Overall, it is the world's largest
provider of health care products and services to office-based
dental, animal health, and medical practitioners.
"155. Henry Schein currently holds a Wholesale
Distributor license from the Alabama Board of Pharmacy as
well as a license to distribute controlled substances in
Alabama. It continues to use this license to distribute
pharmaceuticals, including controlled substances, into
Alabama.
"156. As described in this complaint, Henry Schein has
had multiple instances in which it has inappropriately
distributed controlled substances. From this pattern of
instances, it can be inferred that Henry Schein's policies and
procedures have failed to adapt and change in order to
prevent the future diversion of prescription opioids. On that
16
SC-2023-0289
basis, Plaintiffs allege on information and belief that Henry
Schein continues to operate in ways that enable the diversion
of prescription opioids.
"f. McKesson
"157. Defendant McKesson Corporation ('McKesson') is
a Delaware corporation with its principal place of business in
Irving, Texas.
"158. McKesson is the largest pharmaceutical
distributor in North America. McKesson distributes
approximately one-third of all pharmaceuticals used in North
America. At all times relevant to this Complaint, McKesson
distributed prescription opioids throughout the United
States, including in Alabama.
"159. From 2006 to 2014, McKesson was the largest
distributor of oxycodone and hydrocodone in Alabama.
McKesson continues to distribute products, including
controlled substances, to customers within the State of
Alabama. McKesson currently holds an active license from
the Alabama Board of Pharmacy to distribute controlled
substances in Alabama.
"160. In its 2018 annual report, McKesson stated that it
'partner[s] with [pharmaceutical] manufacturers, providers,
pharmacies, governments and other organizations in
healthcare to help provide the right medicines, medical
products and healthcare services to the right patients at the
right time, safely and cost-effectively.'
"161. As described in this complaint, McKesson has had
multiple instances in which it has inappropriately distributed
controlled substances. From this pattern of instances, it can
be inferred that McKesson's policies and procedures have
failed to adapt and change in order to prevent the future
diversion of prescription opioids. On that basis, Plaintiffs
17
SC-2023-0289
allege on information and belief that McKesson continues to
operate in ways that enable the diversion of prescription
opioids.
"162. Collectively, McKesson, AmerisourceBergen, and
Cardinal account for 85% of drug shipments in the United
States and take in about $400 billion in annual revenue.
"163. Cardinal, Anda, H.D. Smith, Henry Schein,
AmerisourceBergen, and McKesson are collectively referred
to as the 'Distributor Defendants' or the 'Supply Chain
Defendants.' "
(Emphasis added; footnotes omitted.)
Additionally, in their factual allegations, the plaintiffs asserted
that the distributor defendants "have and have breached duties to guard
against, prevent, and report suspicious orders and unlawful diversion" of
opioids. They also asserted that the distributor defendants have "worked
together to achieve their common purpose through trade or other
organizations, such as the Pain Care Forum and the Healthcare
Distribution Alliance." They further asserted that the distributor
defendants "were aware of and have acknowledged their obligations to
prevent diversion and report and take steps to halt suspicious orders";
that the distributor defendants "kept careful track of prescribing data
and knew about suspicious orders and prescribers"; and that the
distributor defendants "failed to report suspicious orders or otherwise act
18
SC-2023-0289
to prevent diversion." After discussing conduct that goes back many
years, the plaintiffs stated:
"876. Defendants have admitted to disregarding their
duties. They have admitted that they pumped massive
quantities of opioids into communities around the country
despite their obligations to control supply, prevent diversion,
and report and take steps to halt suspicious orders.
"877. On the basis of this pattern of misconduct,
Plaintiffs allege that, despite these enforcement activities and
despite their promises to improve their policies and
procedures so as to prevent the diversion of prescription
opioids (and so contributing to the opioid epidemic in
Alabama), Defendants have failed to do so and, in fact, on
information and belief, continue to operate in ways that
enable the diversion of prescription opioids."
The plaintiffs further asserted that the distributor defendants "delayed
a response to the opioid crisis by pretending to cooperate with law
enforcement"; that the distributor defendants unlawfully distributed
opioids; that the distributor defendants breached their duties; and that
each of the distributor defendants have engaged in wrongful conduct.
With regard to Cardinal, the plaintiffs alleged that "Cardinal's
flawed written policies enabled opioid diversion"; that Cardinal failed to
effectively prevent diversion in practice; and that Cardinal had been put
on notice of its wrongful conduct. They further alleged:
19
SC-2023-0289
"976. From this pattern of misconduct and Cardinal's
evident refusal to adopt policies and procedures that would
effectively prevent diversion -- despite promising to do so,
Plaintiffs allege that Cardinal has continued to engage in
conduct contributing to the opioid epidemic in Alabama by
distributing opioids under circumstances suggestive of
potential diversion."
With regard to AmerisourceBergen, the plaintiffs alleged that
"AmerisourceBergen's flawed written policies enabled opioid diversion";
that AmerisourceBergen failed to effectively prevent diversion in
practice; and that AmerisourceBergen had been put on notice of its
wrongful conduct. They further alleged:
"990. AmerisourceBergen continues to distribute opioids
into Alabama and, on information and belief, continues to
distribute them under circumstances suggestive of potential
diversion."
With regard to H.D. Smith, the plaintiffs alleged:
"1000. H.D. Smith was the seventh largest distributor of
opioids in Alabama during this time period. H.D. Smith's
excessive distribution was made possible by, and is evidence
of, H.D. Smith's failure to comply with its duties under state
and federal law.
"1001. As described elsewhere in this Complaint,
Plaintiffs allege based on H.D. Smith's pattern of misconduct
that it engaged in activities contributing to the opioid
epidemic within the relevant limitations period."
20
SC-2023-0289
With regard to Henry Schein, the plaintiffs alleged that "Henry
Schein continues to distribute controlled substances into Alabama." They
further included allegations regarding "Henry Schein's inadequate SOM
program."
With regard to McKesson, the plaintiffs alleged:
"1011. In May 2008, McKesson entered into a settlement
agreement with the DEA to settle claims that McKesson had
failed to maintain effective controls against diversion of
controlled substances in Florida, Maryland, Colorado, Texas,
Utah, and California (the '2008 McKesson Settlement
Agreement').
"1012. In the 2008 McKesson Settlement Agreement,
McKesson 'recognized that it had a duty to monitor its sales
of all controlled substances and report suspicious orders to
DEA.' McKesson agreed to 'maintain a compliance program
designed to detect and prevent the diversion of controlled
substances, inform DEA of suspicious orders ... and follow the
procedures established by its Controlled Substance
Monitoring Program.' But McKesson failed to do so. It was
later revealed that McKesson's system for detecting
'suspicious orders' from pharmacies was so ineffective and
dysfunctional that, in a five-year period, it filled more than
1.6 million orders, but reported just 16 orders as suspicious --
all from a single consumer.
"1013. In January 2017, McKesson admitted to its
ongoing breach of its duties to monitor, report, and prevent
suspicious orders of oxycodone and hydrocodone by entering
into a Settlement Agreement and Release with the DEA and
the DOJ [Department of Justice] (the 'the 2017 McKesson
Settlement Agreement').
21
SC-2023-0289
"1014. In the 2017 McKesson Settlement Agreement,
McKesson admitted that, between January 1, 2009 and
January 17, 2017, it 'did not identify or report to DEA certain
orders placed by certain pharmacies which should have been
detected by McKesson as suspicious based on the guidance
contained in the DEA Letters.' Despite its obligations under
the 2008 Settlement Agreement, McKesson still 'failed to
properly monitor its sales of controlled substances and/or
report suspicious orders to DEA, in accordance with
McKesson's obligations under the 2008 Agreements, the CSA
[Controlled Substances Act], and 21 C.F.R. § 1301.74(b).'
"1015. In the 2017 McKesson Settlement Agreement,
McKesson further admitted that it had 'distributed controlled
substances to pharmacies even though those [McKesson]
Distribution Centers should have known that the
pharmacists practicing within those pharmacies had failed to
fulfill their corresponding responsibility to ensure that
controlled substances were dispensed pursuant to
prescriptions issued for legitimate medical purposes by
practitioners acting in the usual course of their professional
practice, as required by 21 C.F.R. § 1306.04(a).' McKesson
admitted that it had 'failed to maintain effective controls
against diversion of particular controlled substances into
other than legitimate medical scientific and industrial
channels by sales to certain of its customers in violation of the
CSA and the CSA's implementing regulations.'
"1016. As part of the 2017 McKesson Settlement
Agreement, McKesson agreed that its authority to distribute
controlled substances from 12 distribution centers would be
partially suspended for several years. The overall sanctions
included in the 2017 Settlement Agreement were the most
severe ever imposed on a DEA-registered distributor.
"1017. According to the Washington Post and 60
Minutes, DEA staff recommended a much larger penalty than
the $150 million ultimately agreed to -- as much as a billion
22
SC-2023-0289
dollars -- and delicensing of certain facilities. A DEA memo
outlining the investigative findings in connection with the
administrative case against 12 McKesson distribution centers
included in the 2017 Settlement stated that McKesson
'[s]upplied controlled substances in support of criminal
diversion activities'; '[i]gnored blatant diversion'; had a
'[p]attern of raising thresholds arbitrarily'; '[f]ailed to review
orders or suspicious activity'; and '[i]gnored [the company’s]
own procedures designed to prevent diversion.' "
(Footnotes omitted.) The amended complaint also alleged that the
distributor defendants "have sought to and have misrepresented their
compliance with their legal duties" and that "repeated admonishments
and fines did not stop the distributor defendants from ignoring their
obligations to control the supply chain and prevent diversion."
In their "additional allegations pertaining to punitive damages,"
the plaintiffs asserted:
"1033. Each Defendant knew that large and suspicious
quantities of opioids were being poured into communities
throughout the United States. Despite this knowledge,
Defendants took either no steps or utterly inadequate steps to
report suspicious orders, control the supply of opioids, or
otherwise prevent diversion. Indeed, as described above,
Defendants acted in concert to maintain high quotas for their
products and to ensure that suspicious orders would not be
reported to regulators.
"1034. Defendants' conduct was so willful and deliberate
that it continued in the face of numerous enforcement actions,
fines, and other warnings from federal and state governments
and regulatory agencies. Defendants paid their fines, made
23
SC-2023-0289
promises to do better, and continued on with their marketing
and supply schemes. This ongoing course of conduct
knowingly, deliberately, and repeatedly threatened and
accomplished harm to public health and safety and large-scale
economic loss to hospitals, families, communities, and
governments across the state.
"1035. As all of the governmental actions against
Defendants show, Defendants knew that their actions were
unlawful, and yet deliberately refused to change their
practices because compliance with their legal obligations
would have decreased their sales and profits."
(Emphasis added.)
On September 8, 2022, the distributor defendants filed a motion to
dismiss the plaintiffs' claims against them pursuant to Rule 12(b)(6), Ala.
R. Civ. P. In their motion, the distributor defendants alleged, among
other things, that the plaintiffs' claims against them were barred by the
applicable statutes of limitations. On March 20, 2023, the trial court
entered an order denying the motion to dismiss. The petitioners
subsequently filed their petition for a writ of mandamus directing the
trial court to vacate its March 20, 2023, order denying their motion to
dismiss and to enter an order dismissing the plaintiffs' claims against
them with prejudice.
Standard of Review
24
SC-2023-0289
" 'A writ of mandamus is an extraordinary
remedy available only when the petitioner can
demonstrate: " '(1) a clear legal right to the order
sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal
to do so; (3) the lack of another adequate remedy;
and (4) the properly invoked jurisdiction of the
court.' " Ex parte Nall, 879 So. 2d 541, 543 (Ala.
2003) (quoting Ex parte BOC Grp., Inc., 823 So. 2d
1270, 1272 (Ala. 2001)).'
"Ex parte Watters, 212 So. 3d 174, 180 (Ala. 2016).
" 'The general rule is that, subject to certain narrow
exceptions, the denial of a motion to dismiss is not reviewable
by petition for a writ of mandamus.' Ex parte Brown, 331 So.
3d 79, 81 (Ala. 2021). However,
" '[t]his Court has recognized that an appeal
is an inadequate remedy in cases where it has
determined that a defendant should not have been
subjected to the inconvenience of litigation
because it was clear from the face of the complaint
that the defendant was entitled to a dismissal or
to a judgment in its favor.'
"Ex parte Sanderson, 263 So. 3d 681, 687-88 (Ala. 2018)
(citing Ex parte Hodge, 153 So. 3d 734 (Ala. 2014), and Ex
parte U.S. Bank Nat'l Ass'n, 148 So. 3d 1060 (Ala. 2014)). In
particular, in Ex parte Hodge, this Court permitted
mandamus review of a trial court's denial of a motion to
dismiss contending that the plaintiff's malpractice claim was
barred by the four-year statute of repose contained in § 6-5-
482(a), Ala. Code 1975, when the applicability of that statute
was clear from the face of the complaint. Cf. Ex parte
Watters, 212 So. 3d at 182 (denying a mandamus petition
because 'it [was] not abundantly clear from the face of [the
plaintiff's] complaint whether the survival statute dictate[d]
25
SC-2023-0289
dismissal of the legal-malpractice claim because the issue
whether the claim sound[ed] in tort, in contract, or in both for
that matter, [was] sharply disputed by the parties'). Thus, if
it is clear from the face of [the plaintiff's] complaint that the
claims against [the defendant] are barred by the rule of repose
or the applicable statute of limitations, then [the defendant]
is entitled to mandamus relief.
"With respect to evaluating a trial court's denial of a
Rule 12(b)(6) motion to dismiss,
" '[t]he appropriate standard of review ... is
whether "when the allegations of the complaint
are viewed most strongly in the pleader's favor, it
appears that the pleader could prove any set of
circumstances that would entitle [the pleader] to
relief." Nance v. Matthews, 622 So. 2d 297, 299
(Ala. 1993); Raley v. Citibanc of
Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.
1985). This Court does not consider whether the
plaintiff will ultimately prevail, but only whether
the plaintiff may possibly prevail. Nance, 622 So.
2d at 299. A "dismissal is proper only when it
appears beyond doubt that the plaintiff can prove
no set of facts in support of the claim that would
entitle the plaintiff to relief." Nance, 622 So. 2d at
299; Garrett v. Hadden,495 So. 2d 616, 617
(Ala.
1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala.
1986).'
"Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 260 (Ala.
2003)."
Abbott, 342 So. 3d at 193-94.
" ' "[A] Rule 12(b)(6) dismissal is proper only
when it appears beyond doubt that the plaintiff
can prove no set of facts in support of the claim
26
SC-2023-0289
that would entitle the plaintiff to relief." Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993)
(citations omitted). "Next, the standard for
granting a motion to dismiss based upon the
expiration of the statute of limitations is whether
the existence of the affirmative defense appears
clearly on the face of the pleading." Braggs v. Jim
Skinner Ford, Inc., 396 So. 2d 1055, 1058
(Ala.1981) (citations omitted).'
"Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1193 (Ala.
2003)."
Limon v. Sandlin, 200 So. 3d 21, 23-24 (Ala. 2015).
Discussion
The petitioners argue that the trial court erroneously denied their
motion to dismiss based upon statute-of-limitations grounds. They
contend that
"Plaintiffs' claims against Distributors are barred by the
applicable two-year statute of limitations. See Abbott, 342 So.
3d at 194 & n.7; Ex parte Brian Nelson Excavating, LLC, 25
So. 3d 1143, 1154 (Ala. 2009) (discussing 'the two-year statute
of limitations in § 6-2-38, Ala. Code 1975, for nuisance
claims')."
Petition at 6. In Abbott, this Court stated:
"The statute of limitations for a nuisance claim is two years.7
See, e.g., Ex parte Brian Nelson Excavating, LLC, 25 So. 3d
1143, 1145 (Ala. 2009) (discussing 'the two-year statute of
limitations in § 6-2-38, Ala. Code 1975, for nuisance claims').
"____________________
27
SC-2023-0289
"7The applicable statute of limitations for most of Mobile
Health's other claims against Abbott -- negligence,
wantonness, and fraud and deceit -- is also two years. See,
e.g., Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 88 (Ala.
2012) ('We once again reaffirm the proposition that
wantonness claims are governed by the two-year statute of
limitations now embodied in § 6-2-38(l)[, Ala. Code 1975].');
Bush v. Ford Life Ins. Co., 682 So. 2d 46, 47 (Ala. 1996) ('The
statute of limitations applicable to a negligence claim is two
years.'); Liberty Nat'l Life Ins. Co. v. McAllister, 675 So. 2d
1292, 1297 (Ala. 1995) ('A fraud action is subject to a two-year
statute of limitations.'). The same limitations period applies
to the civil-conspiracy claims. See, e.g., Freeman v. Holyfield,
179 So. 3d 101, 105 (Ala. 2015). This Court has not decided
whether the applicable limitations period for an unjust-
enrichment claim is two years or six years. See Snider v.
Morgan, 113 So. 3d 643, 655 (Ala. 2012) ('Our research
similarly confirms that there is a distinct absence of authority
definitively stating the statute of limitations applicable to an
unjust-enrichment claim. We need not, however, decide that
issue here.'). However, Mobile Health did not argue before
the circuit court or in this Court that its unjust-enrichment
claim against Abbott is within the statute of limitations
absent tolling through fraud, an argument we address later
in this opinion."
342 So. 3d at 194-95.2 The petitioners assert that "[t]his Court should
grant mandamus review and confirm that Abbott compels dismissal
because Plaintiffs' own allegations establish that their purported injuries
-- increased costs associated with the treatment of patients with opioid-
2Inthis case, the plaintiffs have not argued that their unjust-
enrichment claims are subject to a six-year statute of limitations.
28
SC-2023-0289
related conditions -- necessarily occurred years before the applicable
accrual date of March 26, 2019." Petition at 1.
In the "Tolling and Fraudulent Concealment" section of the
amended complaint, the plaintiffs alleged:
"1060. Plaintiffs maintain that each Defendant has
engaged in conduct within the applicable limitations period
and that has been described above. Such misconduct
indicates that the statute of limitations does not operate as a
bar to Plaintiffs' claims. Nevertheless, Plaintiffs also allege
facts, as described below, that toll the running of the statute
of limitations.
"….
"1067. As described in this complaint, although
Defendants' misconduct that caused the opioid epidemic
began many years ago, Defendants have continued to engage
in such conduct within the relevant statute of limitations
period."
In their amended complaint, the plaintiffs alleged that the remaining
defendants have "engaged in conduct within the applicable limitation
period" and that "[s]uch misconduct indicates that the statute of
limitations does not operate as a bar to Plaintiffs' claims." They further
alleged that the applicable statutes of limitations were tolled because the
remaining defendants had fraudulently concealed the various causes of
action.
29
SC-2023-0289
The petitioners argue that this Court's decision in Abbott "confirms
that the continuing tort doctrine does not apply." Petition at 17. They
go on to argue:
"Plaintiffs' Amended Complaint preemptively attempts
to circumvent the statute of limitations by invoking the
continuing tort doctrine, alleging in a conclusory fashion that
Distributors' misconduct continues through today. See, e.g.,
Am. Compl. ¶¶ 113, 120, 125, 152, 156, 161, 990.17 But
Plaintiffs do not identify any specific conduct within the
limitations period. On the contrary, they say that it 'can be
inferred' based solely on alleged misconduct in earlier periods.
Id. ¶¶ 113, 120, 125, 156, 161. These allegations are not
sufficient to trigger the continuing tort doctrine under
Alabama law.
"This Court rejected that precise outcome and confirmed
the limits of the continuing tort doctrine in Abbott. This
Court held that generic allegations that defendants
'continue[] to conduct' wrongdoing or that a particular
defendant's tort 'was a continuing pattern of conduct that
continued at least until the time that [plaintiffs] filed the
lawsuit' are insufficient as a matter of law to avoid the statute
of limitations. Abbott, 342 So. 3d at 195 (quoting the
complaint). Instead, to invoke the continuing tort doctrine,
the complaint must raise 'specific allegations against' the
defendant of conduct within the limitations period. Id.
(emphasis added).
"_________________
"17As to each Distributor, Plaintiffs rotely allege 'on
information and belief that [distributor] continues to operate
in ways that enable the diversion of prescription opioids.' Id.
¶¶ 113, 120, 125, 152, 156, 161."
30
SC-2023-0289
Petition at 17-18. However, the petitioners overstate this Court's holding
in Abbott regarding the pleading requirements for a continuing tort.
In Abbott, the Mobile County Board of Health and the Family
Oriented Primary Health Care Clinic (collectively referred to as "Mobile
Health") sued over 60 defendants, including Abbott Laboratories and
Abbott Laboratories, Inc. (collectively referred to as "Abbott"). In its
complaint, "Mobile Health alleged that Abbott had participated in the
marketing of a specific prescription drug, Oxycontin." 342 So. 3d at 188.
Mobile Health alleged that the defendants "had caused a public nuisance
in the form of an opioid epidemic." Additionally,
"[w]ith 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
31
SC-2023-0289
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 conditions[] 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.
32
SC-2023-0289
" '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.
" '....
33
SC-2023-0289
" '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. [Mobile Health has] experienced similar
increases and similar associated increased costs.
" '44. Private insurance covers only a portion of
those costs. The burden is carried by hospitals,
boards of health, primary care providers, patients,
and government programs. In 2012, hospitals
provided almost $15 billion for opioid-related
inpatient care, more than double of what they
billed in 2002. A substantial portion of these costs
were under-insured or unreimbursed.
" '45. In 2012, an average hospital stay for a
patient with an opioid-related condition cost about
$28,000 and only about 20% of the hospital stays
related to those incidents were covered by private
insurance. The number increased to $107,000 if
there was an associated infection, with merely
14% covered by insurance.
" '46. Patients with complex opioid addiction-
related histories (medically and psychosocially)
often cannot get treatment at skilled nursing
facilities if they are discharged by hospitals.
" ' 47. The cost of treating opioid overdose victims
in hospital intensive care units jumped 58% in a
seven-year span. Between 2009 and 2015, the
average cost of care per opioid overdose admission
increased from $58,000 to $92,400. This was
during a period where the overall medical cost
34
SC-2023-0289
escalation was about 19%. This cost increase also
highlights a troubling trend: overdose patients are
arriving in worse shape, requiring longer stays
and a higher level of treatment.
" '....
" '49. The rates of opioid abuse during pregnancy
have increased nationally and in Alabama. There
has been an almost four-fold increase in
admissions to NICUs [neonatal intensive-care
units] for NAS over the past decade: from seven
cases per 1,000 NICU admissions in 2004, to 27
cases per 1,000 NICU admissions in 2012.
" '….'
"(Emphasis added.)
"On October 15, 2019, Mobile Health filed its original
complaint in the Mobile Circuit Court against Abbott and
numerous other defendants -- over 60 defendants in all --
alleging that they had caused a public nuisance in the form of
an opioid epidemic:
" '1. The opioid epidemic is an ongoing crisis in
Alabama. Opioid use has had tragic consequences
for communities across Alabama, including those
in Mobile, Baldwin, and Conecuh Counties.
Thousands of people have died from opioid
overdoses, and many thousands more suffer from
Opioid use disorders and related health conditions
in Alabama. The misrepresentations by
Defendants described herein regarding the risks
and benefits of opioids enabled, and are continuing
to enable, the widespread prescribing of opioids for
common chronic pain conditions like lower back
pain, arthritis, and headaches.
35
SC-2023-0289
" '....
" '953. This [nuisance] claim is brought under the
Alabama common law of nuisance. This claim is
also brought pursuant to Ala. Code § 22-3-2(3),
which instructs Plaintiff Mobile County Board of
Health to abate nuisances.
" '....
" '958. The nuisance created by Defendants is the
over-saturation of opioids in the patient
population of the geographic area served by
[Mobile Health] for illegitimate purposes, as well
as the adverse social, economic, and human health
outcomes associated with widespread illegal opioid
use.'
"Mobile Health asserted against Abbott claims of negligence,
wantonness, nuisance, unjust enrichment, fraud and deceit,
and civil conspiracy. With respect to all of their claims
against all the defendants, Mobile Health alleged:
" '918. [Mobile Health is] entitled to a tolling of any
statutes of limitation because Defendants
fraudulently concealed the existence of their
causes of action from [it]. [Mobile Health] did not
know, and did not have any reason to know, any of
the facts regarding Defendants' marketing
misconduct until the DEA's [Drug Enforcement
Administration] ARCOS [Automated Reports and
Consolidated Ordering System] data was released
in 2019. Until then, [Mobile Health was] not
aware that the opioid crisis was the result of
massive and improper distribution of opioids in
the counties that [it] serve[s]. Also, [Mobile
Health] did not know, and did not have any reason
36
SC-2023-0289
to know, of the Defendants' failures to report
suspicious orders and otherwise prevent diversion
of opioids in the three counties that [it] serve[s]
until [it was] able to obtain in 2019 excerpts of
pleadings, documents, and testimony produced in
the MDL [multidistrict litigation]. [Mobile
Health] first became aware of allegations about
Defendants' marketing practices from news
articles in 2018. Without the ARCOS data, and
without the information from the MDL, [Mobile
Health was] unable to determine that [it] had a
cause of action to pursue against Defendants.' "
Abbott, 342 So. 3d at 189-93 (footnotes omitted).
Abbott filed a motion to dismiss all the claims Mobile Health had
stated against it, asserting, among other things, that the claims were
barred by the applicable statutes of limitations and the 20-year common-
law rule of repose. After Mobile Health filed a response and Abbott filed
a reply in support of its motion to dismiss, the trial court entered an order
in which it denied Abbott's motion to dismiss. Abbott subsequently filed
a mandamus petition in this court. In its mandamus petition, Abbott
argued, in part, that Mobile Health's claims against it were barred by the
applicable statutes of limitations.
In addressing Abbott's arguments, this Court stated, in pertinent
part:
37
SC-2023-0289
" 'The statute of limitations begins to run when the cause
of action accrues, which this Court has held is the date the
first legal injury occurs.' Ex parte Integra LifeSciences Corp.,
271 So. 3d 814, 818 (Ala. 2018). 'A cause of action accrues as
soon as the claimant is entitled to maintain an action,
regardless of whether the full amount of the damage is
apparent at the time of the first legal injury.' Chandiwala v.
Pate Constr. Co., 889 So. 2d 540, 543 (Ala. 2004).
"The claim both parties focus on with respect to the
statute of limitations is Mobile Health's nuisance claim. The
statute of limitations for a nuisance claim is two years. See,
e.g., Ex parte Brian Nelson Excavating, LLC, 25 So. 3d 1143,
1145 (Ala. 2009) (discussing 'the two-year statute of
limitations in § 6-2-38, Ala. Code 1975, for nuisance claims').
As Abbott observes, according to the complaint, Abbott last
actively marketed OxyContin in 2002 and it received its last
payments from its co-promotion agreement with Purdue in
2006, but Mobile Health commenced this action on October
15, 2019. Abbott therefore argues that from the face of the
complaint Mobile Health commenced its action 11 years after
the expiration of the applicable statute of limitations.
"Mobile Health presents three arguments in response.
First, it contends that it alleged that the public nuisance is a
continuing tort and, thus, is not barred by the statute of
limitations.
" 'The Complaint shows that [Mobile Health]
alleges that Abbott's tort was a continuing pattern
of conduct that continued at least until the time
that [Mobile Health] filed the lawsuit. See
generally Complaint. Thus, under established
Alabama law, the Complaint sufficiently alleges
continuing tortious conduct and the statute of
limitations does not bar this continuing nuisance
claim.'
38
SC-2023-0289
"Mobile Health's brief, p. 15. For support, Mobile Health cites
such cases as Alabama Great Southern R.R. v. Denton, 239
Ala. 301, 305,195 So. 218, 221
(1940), in which this Court
stated: 'We recognize that one maintaining a continuing
public nuisance, as for example, one endangering the public
health or public safety, cannot defend against a suit to abate
same because of the lapse of time.' See also Holz v. Lyles, 287
Ala. 280, 284,251 So. 2d 583, 587
(1971) ('But one
maintaining a continuing public nuisance cannot defend
against a suit to abate the nuisance because of lapse of time
....').
"Mobile Health is certainly correct that it generally
alleged a continuous tort against the marketing defendants[,
which included Abbott].
" '221. Each Marketing Defendant has conducted,
and continues to conduct, a marketing scheme
designed to persuade doctors and patients that
opioids can and should be used for chronic pain,
resulting in opioid treatment for a far broader
group of patients who are much more likely to
become addicted and suffer other adverse effects
from the long-term use of opioids. In connection
with this scheme, each Marketing Defendant
spent, and continues to spend, millions of dollars
on promotional activities and materials that
falsely deny, trivialize, or materially understate
the risks of opioids while overstating the benefits
of using them for chronic pain.'
"However, the specific allegations against Abbott in the
complaint do not mention conduct of any kind by Abbott after
2006. This is important because there must be a connection
between the defendant's actions and the ongoing tort.
" 'This Court has used the term "continuous tort"
to describe a defendant's repeated tortious conduct
39
SC-2023-0289
which has repeatedly and continuously injured a
plaintiff. These cases can be analyzed by
analogizing the plaintiffs' cause of action to the
common law action of continuing trespass or
trespass on the case.
" 'This Court has held that a defendant's
repeated wrongs to the plaintiff can constitute a
"continuous tort," such as: (1) when an employer
exposes its employee on a continuing basis to
harmful substances and conditions [American
Mut. Liability Ins. Co. v. Agricola Furnace Co., 236
Ala. 535,183 So. 677
(1938)]; (2) when there is a
"single sustained method pursued in executing one
general scheme," as in a blasting case [Lehigh
Portland Cement Co. v. Donaldson, 231 Ala. 242,
246,164 So. 97
(1935)]; and (3) when a plaintiff
landowner seeks damages for the contamination of
a well or stream [Howell v. City of Dothan, 234
Ala. 158,174 So. 624
(1937); Employers Insurance
Company of Alabama v. Rives, 264 Ala. 310,87 So. 2d 653
(1955); and Alabama Fuel & Iron Co. v.
Vaughn, 203 Ala. 461,83 So. 323
(1919)].
" ' The stream and well pollution cases, the
blasting cases, and the employer-employee cases
are all cases in which this Court has held that the
defendants committed a continuous tort. The
cases are analogous to a continuing trespass in
that the repeated actions of the defendants
combined to create a single cause of action in tort.'
"Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220-21 (Ala. 1983)
(emphasis added). See also Continental Cas. Ins. Co. v.
McDonald, 567 So. 2d 1208, 1216 (Ala. 1990) (holding that 'an
action such as this, arising from continuing dealings between
the parties, will not be barred until two years after the last
tortious act by the defendant' (emphasis added)). Holz and
40
SC-2023-0289
Denton contain this same idea by discussing a defendant's
'maintaining a continuing public nuisance,' indicating that
the reason the statute of limitations does not expire for a
continuous tort is because the defendant's conduct is ongoing
within the period of the statute of limitations. Cf. Payton v.
Monsanto Co., 801 So. 2d 829, 836 (Ala. 2001) (concluding that
the plaintiff's 'complaint describing continuing discharge of
PCBs as of the time of the commencement of this action'
allowed the claims to 'survive a defense of limitations by proof
of conduct occurring within the limitations period'); Alabama
Power Co. v. Gielle, 373 So. 2d 851, 854 (Ala. Civ. App. 1979)
('A continuing trespass creates successive causes of action,
and damages may be recovered for the trespass occurring
within the statutory period.').
"In short, the fact that the alleged opioid epidemic itself
was ongoing at the time Mobile Health filed its original
complaint does not mean that Abbott's conduct in relation to
the epidemic is not subject to the statute of limitations. As
the Court explained in Payton:
" 'Alabama law does not recognize a continuing tort
in instances where there has been a single act
followed by multiple consequences.2
" '___________________
" ' 2Moon v. Harco Drugs, Inc., 435 So. 2d 218,
220-21 (Ala. 1983), discusses the concept of
"continuous tort," describing it as a defendant's
liability for repeated wrongs to the plaintiff. Then,
the Court offers several illustrations, including
"when a plaintiff landowner seeks damages for the
contamination of a well or stream." Id. at 221.
However, the three cases cited to support this
proposition involve repetitive acts or ongoing
wrongdoing[:] Howell v. City of Dothan, 234 Ala.
158,174 So. 624
(1937) (ongoing discharge of
41
SC-2023-0289
sewage), Employers Insurance Co. of Alabama v.
Rives, 264 Ala. 310,87 So. 2d 653
(1955) (opinion
refers to repetitive acts), Alabama Fuel & Iron Co.
v. Vaughn, 203 Ala. 461,83 So. 323
(1919) (damage
resulting from the ongoing operations of a coal
mine).'
"801 So. 2d at 835 (emphasis added). There are no allegations
of ongoing wrongdoing by Abbott within two years of the date
Mobile Health filed its original complaint. Therefore, Mobile
Health's general allegation of a continuous public nuisance
does not save its claims against Abbott from the statute-of-
limitations bar."
Abbott, 342 So. 3d at 194-96 (footnote omitted).
The petitioners argue that, in Abbott, this Court held that, "to
invoke the continuing tort doctrine, the complaint must raise 'specific
allegations against' the defendant of conduct within the limitations
period. [Abbott, 342 So. 3d at 195] (emphasis added)." Petition at 18.
However, the petitioners overstate this Court's holding in Abbott.
Contrary to the petitioners' argument, Abbott did not hold that a
complaint must allege specific factual allegations against a defendant "to
invoke the continuing tort doctrine." Petition at 18. In Abbott, Mobile
Health's complaint alleged that "Abbott last actively marketed
OxyContin in 2002 and it received its last payments from its co-
promotion agreement with Purdue in 2006, but Mobile Health
42
SC-2023-0289
commenced this action on October 15, 2019." 342 So. 3d at 195. This
Court acknowledged that Mobile Health had "generally alleged a
continuous tort against the marketing defendants." Id. Additionally, we
did not hold that such general allegations against the marketing
defendants were insufficient to allege a continuing tort for statute-of-
limitations purposes. Rather, this Court looked at Mobile Health's
specific factual allegations against Abbott. The complaint in that case
included specific factual allegations that "Abbott last actively marketed
OxyContin in 2002 and it received its last payments from its co-
promotion agreement with Purdue in 2006." Id. This Court emphasized
that "the specific factual allegations against Abbott did not mention
conduct of any kind by Abbott after 2006" and that "[t]his is important
because there must be a connection between the defendant's actions and
the ongoing tort." Id. (second emphasis added). This Court went on to
state that "[t]here are no allegations of ongoing wrongdoing by Abbott
within two years of the date Mobile Health filed its original complaint.
Therefore, Mobile Health's general allegation of a continuous public
nuisance does not save its claim against Abbott from the statute-of-
limitations bar." Id. at 196. Based on the foregoing, it is clear that in
43
SC-2023-0289
Abbott this Court did not hold that a complaint alleging a continuous tort
must include specific factual allegations regarding a defendant's conduct
that purportedly occurs during the limitations period. Rather, our
decision was based on the fact that the compliant in that case included
specific factual allegations showing that Abbott's alleged misconduct had
ended more than two years before the filing of the complaint in that case.
In this case, the amended complaint, which was filed after this
Court decided Abbott, included specific factual allegations regarding
conduct by each of the petitioners that took place outside the two-year
statute of limitations and conduct that took place outside Alabama.
However, based on those allegations, the plaintiffs asserted that the
petitioners have engaged in a pattern of misconduct. They further
asserted, "on information and belief," that each of the petitioners
"continues to operate in ways that enable the diversion of prescriptive
opioids." Additionally, with regard to the "impact of defendants'
activities on plaintiffs," the plaintiffs alleged:
"266. Plaintiffs have treated, and continue to treat,
numerous patients for opioid-related conditions, including:
(1) opioid overdose; (2) opioid addiction; (3) hepatitis C, HIV,
and other infections occurring as a result of intravenous drug
use; (4) neonatal treatment in its NICU for babies born opioid-
dependent, for which treatment is specialized, intensive,
44
SC-2023-0289
complex, lengthy and highly expensive; and (5) psychiatric
and related treatment for patients with opioid addiction who
present in need of mental health treatment programs.
"267. Plaintiffs' hospitals have suffered a continuing
operational impact as a consequence of the opioid epidemic
created by Defendants' conduct. Simply put, providing the
same level of care and service to patients is more expensive in
the presence of an opioid epidemic than it would be without
that epidemic. For instance, the same medical or surgical
procedure is often more expensive to perform on a patient
with an opioid use disorder than on a patient without that
disorder due to the need to take additional measures and
steps to ensure the patient's safety during and after the
procedure.
"268. Additionally, individuals with opioid addiction
have presented and continue to present themselves to
Plaintiffs claiming to have illnesses and medical problems in
an effort to obtain opioids. Plaintiffs have incurred and
continue to incur operational costs related to the time and
expenses in diagnosing, testing, and otherwise attempting to
treat these individuals.
"….
"271. Patients with opioid-related conditions seek
treatment from Plaintiffs as a proximate result of the opioid
epidemic created and engineered by Defendants. As a result,
Plaintiffs' monetary losses with respect to treatment of these
patients were and are foreseeable to Defendants and were and
are the proximate result of Defendants' acts and omissions
specified herein. Second, patients with opioid conditions have
caused Plaintiffs to incur, and continue to incur, increased
costs in the form of surgical procedures and other care that
have been and are more complex and expensive than they
would otherwise be if the patients were not using or abusing
opioids."
45
SC-2023-0289
(Emphasis added.)
Based on those factual allegations, the amended complaint
generally alleged a continuing tort against the petitioners. However,
unlike the situation in Abbott, the amended complaint did not include
any specific allegations stating or suggesting that any of the petitioners'
alleged misconduct had ended before March 26, 2019, or at any time
before the filing of the complaint. Rather, the complaint specifically
alleged that each of the petitioners "continues to operate in ways that
enable the diversion of prescriptive opioids." Thus, the facts in this case
are clearly distinguishable from the facts in Abbott.
As we have stated:
"We note that pleadings are to be liberally construed in order
to effect the purpose of the Alabama Rules of Civil Procedure
and that every reasonable intendment and presumption must
be made in favor of the pleader. See Rule 8, Ala. R. Civ. P.;
Ex parte International Refining & Mfg. Co., 972 So. 2d 784,
789(Ala. 2007)." Ex parte Moulton,116 So. 3d 1119, 1132
(Ala. 2013). As this Court noted
in Abbott,
"[w]ith respect to evaluating a trial court's denial of a
Rule 12(b)(6) motion to dismiss,
46
SC-2023-0289
" '[t]he appropriate standard of review ... is
whether "when the allegations of the complaint
are viewed most strongly in the pleader's favor, it
appears that the pleader could prove any set of
circumstances that would entitle [the pleader] to
relief." Nance v. Matthews, 622 So. 2d 297, 299
(Ala. 1993); Raley v. Citibanc of
Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.
1985). This Court does not consider whether the
plaintiff will ultimately prevail, but only whether
the plaintiff may possibly prevail. Nance, 622 So.
2d at 299. A "dismissal is proper only when it
appears beyond doubt that the plaintiff can prove
no set of facts in support of the claim that would
entitle the plaintiff to relief." Nance, 622 So. 2d at
299; Garrett v. Hadden,495 So. 2d 616, 617
(Ala.
1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala.
1986).'
"Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 260 (Ala.
2003)."
342 So. 3d at 194.
"We emphasize that, at this stage of the proceedings, the
applicable standard of review required the circuit court and
requires this Court to view [the plaintiffs'] allegations most
strongly in [their] favor and to consider only whether [they]
might possibly prevail if [they] can prove [their] allegations.
See Ex parte Abbott Lab'ys, 342 So. 3d at 194. The issue
before us is not one of proof; rather, the issue is whether the
action can be maintained if [the plaintiffs'] allegations are
true. See id."
Ex parte Mobile Infirmary Ass'n, 349 So. 3d 842, 847 (Ala. 2021).
47
SC-2023-0289
Viewing the plaintiffs' allegations that the petitioners' alleged
misconduct continued through the time of the filing of the complaint as
true, the plaintiffs' claims would not be barred by the applicable statutes
of limitations. Thus, it is not clear from the face of the complaint that
the plaintiffs' claims against the petitioners are barred by the applicable
statutes of limitations. Whether the plaintiffs will be able to present
proof that the petitioners actually engaged in misconduct within the
limitations period is not before us at this time. Therefore, the trial court
did not err when it denied the petitioners' motion to dismiss on statute-
of-limitations grounds. Accordingly, the petitioners are not entitled to an
order dismissing the plaintiffs' claims against them. 3
Conclusion
Based on the foregoing, the petitioners have not established that
the face of the amended complaint clearly demonstrated that the
plaintiffs' claims against them are barred by the applicable statutes of
limitations and that the trial court erred when it denied their motion to
dismiss. Accordingly, the petitioners have not established a clear legal
3Based on this holding, we pretermit discussion of the petitioners'
argument that the doctrine of fraudulent concealment does not apply.
48
SC-2023-0289
right to the relief they seek. Therefore, the petition for a writ of
mandamus is denied.
PETITION DENIED.
Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, and
Mitchell, JJ., concur.
Cook, J., concurs in the result, with opinion.
Sellers, J., dissents.
49
SC-2023-0289
COOK, Justice (concurring in the result).
I concur in the result but do so with hesitation. The question
presented is whether the claims alleged in the most recent amended
complaint were sufficiently pleaded to withstand the petitioners' motion
to dismiss. What makes this question particularly difficult in the present
case is that the petitioners moved to dismiss the plaintiffs' claims against
them based upon an affirmative defense -- that the claims are barred by
the applicable statutes of limitations.
On the one hand, the most recent amended complaint is voluminous
and contains conclusory, general allegations of wrongdoing by each of the
petitioners that are within the applicable two-year statute-of-limitations
period. For instance, as to each of the petitioners, the amended complaint
stated:
"From this pattern of instances, it can be inferred that [the
petitioners'] policies and procedures have failed to adapt and
change in order to prevent the future diversion of prescription
opioids. On that basis, Plaintiffs allege on information and
belief that [the petitioners] continue[] to operate in ways that
enable the diversion of prescription opioids."
(Emphasis added.) On the other hand, the complaint also cited specific
dates for alleged wrongdoing by the petitioners that are outside of the
applicable limitations period. What are we to make of this?
50
SC-2023-0289
The main opinion concludes that, at the pleading stage, these
allegations are sufficient to satisfy the pleading requirements for a
continuous-tort claim. I am not so sure.
The petitioners rely almost exclusively upon this Court's recent
decision in Ex parte Abbott Laboratories, 342 So. 3d 186 (Ala. 2021), in
arguing that we must grant their petition for a writ of mandamus and
order the trial court to grant their motion to dismiss. Specifically, they
assert that "[t]his Court should grant mandamus review and confirm that
Abbott compels dismissal because [the plaintiffs'] own allegations
establish that their purported injuries … necessarily occurred years
before the applicable accrual date" in the present action. Petition at 1.
In Abbott, we explained:
" 'The statute of limitations begins to run when the cause
of action accrues, which this Court has held is the date the
first legal injury occurs.' Ex parte Integra LifeSciences Corp.,
271 So. 3d 814, 818 (Ala. 2018). 'A cause of action accrues as
soon as the claimant is entitled to maintain an action,
regardless of whether the full amount of the damage is
apparent at the time of the first legal injury.' Chandiwala v.
Pate Constr. Co., 889 So. 2d 540, 543 (Ala. 2004).
"….
"Mobile Health is certainly correct that it generally
alleged a continuous tort against the marketing defendants[,
including Abbott].
51
SC-2023-0289
"'….'
"However, the specific allegations against Abbott in the
complaint do not mention conduct of any kind by Abbott after
2006. This is important because there must be a connection
between the defendant's actions and the ongoing tort.
"'….'
"… There are no allegations of ongoing wrongdoing by
Abbott within two years of the date Mobile Health filed its
original complaint. Therefore, Mobile Health's general
allegation of a continuous public nuisance does not save its
claims against Abbott from the statute-of-limitations bar."
342 So. 3d at 194-96 (some emphasis added).4
4We also explained that continued consequences of the original
tortious conduct do not constitute a continuing tort; rather, we explained,
there must be continued tortious conduct:
"[T]he fact that the alleged opioid epidemic itself was ongoing
at the time Mobile Health filed its original complaint does not
mean that Abbott's conduct in relation to the epidemic is not
subject to the statute of limitations. As the Court explained
in Payton[ v. Monsanto Co., 801 So. 2d 829 (Ala. 2001)]:
" 'Alabama law does not recognize a continuing tort
in instances where there has been a single act
followed by multiple consequences.'2
" '_______________
" '2Moon v. Harco Drugs, Inc., 435 So. 2d 218,
220-21 (Ala. 1983), discusses the concept of
"continuous tort," describing it as a defendant's
52
SC-2023-0289
The petitioners certainly have a point that this case is very similar
to Abbott. I find it very difficult to distinguish that case from the
procedural posture in this case. Both this case and Abbott present (1)
nuisance claims regarding improper prescription-drug distribution; (2)
allegations based on specific facts that occurred more than two years
before the lawsuit was commenced; and (3) general allegations that the
wrongful conduct continued.
The main opinion contends, among other things, that Abbott can be
distinguished because the complaint in that case specifically alleged that
liability for repeated wrongs to the plaintiff. Then,
the Court offers several illustrations, including
"when a plaintiff landowner seeks damages for the
contamination of a well or stream." Id. at 221.
However, the three cases cited to support this
proposition involve repetitive acts or ongoing
wrongdoing[:] Howell v. City of Dothan, 234 Ala.
158,174 So. 624
(1937) (ongoing discharge of
sewage), Employers Insurance Co. of Alabama v.
Rives, 264 Ala. 310,87 So. 2d 653
(1955) (opinion
refers to repetitive acts), Alabama Fuel & Iron Co.
v. Vaughn, 203 Ala. 461,83 So. 323
(1919) (damage
resulting from the ongoing operations of a coal
mine).'
"801 So. 2d at 835 (emphasis added)."
Id. at 196.
53
SC-2023-0289
the wrongful "co-promotion agreement" to market the opioid OxyContin
between Abbott and Purdue had expired. True. But Abbott also included
general allegations of continued wrongful conduct after that agreement
had expired, just like here. For instance, the complaint in Abbott alleged:
"'221. Each Marketing Defendant has conducted, and
continues to conduct, a marketing scheme designed to
persuade doctors and patients that opioids can and should be
used for chronic pain, resulting in opioid treatment for a far
broader group of patients who are much more likely to become
addicted and suffer other adverse effects from the long-term
use of opioids. In connection with this scheme, each
Marketing Defendant spent, and continues to spend, millions
of dollars on promotional activities and materials that falsely
deny, trivialize, or materially understate the risks of opioids
while overstating the benefits of using them for chronic pain.'"
Id. at 195 (emphasis added). And yet, this Court in Abbott held that the
claims against Abbott were due to be dismissed.
Thus, how do we distinguish Abbott? Is it enough that the plaintiffs'
most recent amended complaint uses the words "upon information and
belief"? Is it enough that the complaint in this case uses a separate
paragraph for each defendant (by name) to make generalized allegations
of continued conduct? Perhaps the best argument is that there was no
reason to think in Abbott that the wrongful conduct persisted (even
though the complaint claimed that it did) because one particular factual
54
SC-2023-0289
allegation of wrongdoing (the co-marketing agreement) had ended.
Whereas in the present case, perhaps there is reason to think that the
wrongs might have continued because the wrongs alleged with actual
facts did not include an end date. 5 I do not find any of these arguments
to be particularly persuasive in distinguishing Abbott from the present
case.
If I were to only focus on distinguishing Abbott, I would dissent.
However, I note that this Court has a long line of caselaw holding that
our pleading standard is liberal. For instance, this Court has previously
stated:
5It might be possible to argue that the language of Abbott requires
that allegations of continuing conduct be specific. For instance, in
rejecting the argument about general allegations of continued wrongful
conduct, this Court noted that "Mobile Health is certainly correct that it
generally alleged a continuous tort against the marketing defendants"
but that "the specific allegations against Abbott in the complaint do not
mention conduct of any kind by Abbott after 2006." Id. at 195 (some
emphasis added).
However, the only textual basis in the Alabama Rules of Civil
Procedure for a requirement of "specific allegations" is in relation to
allegations of fraud or mistake, per Rule 9(b), Ala. R. Civ. P. ("In all
averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity."). The petitioners have not
argued that Rule 9, Ala. R. Civ. P., applies to the continuing-tort
allegations here.
55
SC-2023-0289
" '[T]he dismissal of a complaint is not proper if the pleading
contains "even a generalized statement of facts which will
support a claim for relief under [Ala. R. Civ. P.] 8" (Dunson v.
Friedlander Realty, 369 So. 2d 792, 796 (Ala. 1979)), because
"[t]he purpose of the Alabama Rules of Civil Procedure is to
effect justice upon the merits of the claim and to renounce the
technicality of procedure." Crawford v. Crawford, 349 So. 2d
65, 66(Ala. Civ. App. 1977).' " Segrest v. Segrest,328 So. 3d 256
, 274 (Ala. 2020) (quoting Simpson v. Jones,460 So. 2d 1282, 1285
(Ala. 1984)).
Notably, this pleading standard is more liberal than the standard
currently applied in federal courts. See generally Bell Atl. Corp. v.
Twombly, 550 U.S. 544(2007), and Ashcroft v. Iqbal,556 U.S. 662, 679
(2009) (requiring that the complaint state a "plausible claim"). If we were
to apply the federal pleading standard in this case, we would be called
upon to determine whether the allegation that "on information and
belief" the petitioners "continue[] to operate in ways that enable the
diversion of prescription opioids" is plausible in light of, among other
things, the actual facts pleaded in the most recent amended complaint.
However, in this case, we have been asked neither to adopt the federal
pleading standard nor to overrule our caselaw upholding Alabama's
56
SC-2023-0289
liberal pleading standard. 6
Moreover, the petitioners' motion was not an ordinary motion to
dismiss. It was a motion to dismiss based upon an affirmative defense.
As noted in the main opinion, " 'the standard for granting a motion to
dismiss based upon the expiration of the statute of limitations is whether
the existence of the affirmative defense appears clearly on the face of the
pleading.' " Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1193(Ala. 2003) (quoting Braggs v. Jim Skinner Ford, Inc.,396 So. 2d 1055, 1058
(Ala.
1981)) (some emphasis added). I agree with the main opinion that it is
not clear from the face of the most recent amended complaint that the
plaintiffs' claims against the petitioners are barred by the applicable
statutes of limitations.
Because this case is before us on a petition for a writ of mandamus
6I note that federal courts and many state courts across the country
have operated under the heightened pleading standard enunciated in
Twombly and Iqbal, supra, for many years. While I offer no opinion on
whether this more stringent pleading standard should be adopted in
Alabama, I make this observation in the hope that future litigants may
consider raising this issue in an appropriate case for our Court to fully
consider after input from members of the public wishing to file amicus
briefs (including whether the heightened standard might be appropriate
in all cases or only in a subset of cases).
57
SC-2023-0289
-- an "extraordinary remedy" which is applicable only when there is "'a
clear legal right,'" Ex parte Watters, 212 So. 3d 174, 180 (Ala. 2016)
(citation omitted) -- we need not decide at this time whether the plaintiffs
will be able to present proof that the petitioners actually engaged in the
alleged misconduct during the applicable limitations period. This Court
can confront that question, if necessary, on appeal, upon the facts that
are in the record, rather than upon the limited basis of the pleadings. 7 It
is for this reason that I concur in the result.
7I note the argument of the plaintiffs that the petitioners' alleged
activity also constituted an "abatable nuisance." The petitioners reply by
arguing, among other things, that "abatable nuisance" was not pleaded
and that no abatable nuisance existed because it would require
additional tortious conduct within the limitations period, rather than
additional consequences from the earlier tortious conduct. They state
that each case cited by the plaintiffs involved "wrongdoing that occurred
within (and led to harm during) the limitations period." Petitioner's reply
brief at 6. Given the majority's resolution of this mandamus petition, we
need not reach the question whether the plaintiffs alleged an abatable
nuisance or whether, under Alabama law, an abatable nuisance requires
wrongful conduct within the limitations period -- i.e., whether in this case
the alleged nuisance is abated when the wrongful distribution of opioids
ceases or whether the alleged nuisance is abated only when the resulting
consequences of the distribution are remedied.
58