Court rules judge correct to dismiss cold-medicine suit
Posted on Tuesday, January 6, 2009
A lawsuit brought by 20 Arkansas counties against manufacturers and wholesalers of over-the-counter cold and allergy medications whose ingredients are used to make methamphetamine was properly dismissed by U.S. District Judge Bill Wilson Jr., a federal appeals court said Monday.
The lawsuit, led by Independence County, was filed in that county's circuit court in April 2007, and was later transferred to federal court.
It sought monetary damages to recoup costs the counties have spent on the societal effects of methamphetamine production. The costs cited were for law-enforcement efforts to find and shut down meth labs; the housing in jail of users, dealers and manufacturers; the treatment of addicts; providing treatment and housing for the children of people arrested on meth charges; and the treatment of victims of exposure to the illegal drug's production.
Asserting that methamphetamine cannot be manufactured without either ephedrine or pseudoephedrine, which are common ingredients in cold medicines, the lawsuit alleged that the companies marketed and sold their products in Arkansas, knowing the products were being used illegally to make meth.
In 2006, Arkansas ranked 10th in the nation in the number of methamphetamine users it treated, according to a federal study.
The suit also alleged that the companies, including Pfizer Inc., PDK Labs Inc., Warner Lambert Co.; Johnson & Johnson; and Perrigo Co., as well as a host of unidentified companies, knowingly sold far more than the amount of the drugs necessary for legitimate purposes.
Independence County asked every one of the state's 75 counties to join in the suit, but many declined, citing the expense of litigation and the unusual tactic of suing over products that are legally made and sold, when other legally distributed products are also subject to being misused.
Wilson dismissed the case last year based solely on the legal arguments in written briefs.
In a 19-page opinion written by U.S. Circuit Judge William Jay Riley of Omaha, Neb., a three-judge panel of the 8th U.S. Circuit Court of Appeals, based in St. Louis, considered the plaintiffs' claims of unjust enrichment, violations of the Arkansas Deceptive Trade Practices Act, violations of nuisance laws, and the Arkansas crime victims' civil liability statute.
The appellate panel, which included U.S. circuit judges David Hansen and Michael J. Melloy, both of Cedar Rapids, Iowa, noted that neither the Arkansas Supreme Court, nor any other court, has addressed the issue of whether the manufacturers should be held responsible for the societal costs.
Applying Arkansas law, the panel noted that the counties didn't actually provide the services in question, and "the circumstances connecting the sales of cold medication to the provision of these government services are simply too attenuated" to prove an implied contract existed and then justify a claim of unjust enrichment.
The panel found that the other three claims also failed as a result of an inability to prove legal causation under Arkansas law.
"The counties cite no case, federal or state, that recognizes a cause of action available to a government entity to recover against pharmaceutical manufacturers for the legal sale of products containing pseudoephedrine based on the subsequent use of the product in the manufacture of methamphetamine," the panel said.
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