2019–2020 Southern Illinois University National Health Law Moot Court Competition

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Notes

1 There are no issues raised in this case about whether the federal courts have jurisdiction over this claim.

2 Front groups are organizations that appear to have been set up to advance one agenda but in reality are controlled by other organizations with hidden agendas.

3 The FDA requires the sponsor of a prescription drug to prove by means of clinical trials and other scientific testing prior to marketing that the drug will be safe and effective for its intended use. See generally 21 C.F.R. pt. 314 (2019). The FDA also must approve any labeling, including indications, contraindications, warnings, and directions for use before the drug can be sold. See generally id. pt. 1302 (2019).

4 Native Village of Kivalina found the first Baker factor was not implicated in that case, despite the fact the plaintiffs’ claims touched upon issues of foreign policy. 663 F. Supp. 2d at 873. The first Baker factor applies only when there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department. …” Baker, 369 U.S. at 217. Native Village of Kivalina reasoned that the fact one branch of government has been given a mandate to address something does not equate to that branch having been given exclusive power over it. 663 F. Supp. 2d at 872. The same is true in this case. Though Congress may have authority to regulate prescription drugs, there is no basis to conclude it has been given exclusive power to do so.

5 Though defendants in some of the opioid litigation cases have argued that federal law preempts state public nuisance claims because of FDA approval, the defendants in this case do not raise that issue in this motion to dismiss.

6 The State has alleged costs associated with opioid abuse into the billions of dollars. Although not directly relevant under the Baker factors, the Court is mindful that imposing crushing liability on the pharmaceutical industry by judicial action will threaten the economic stability of these companies and might cause them to quit producing opioid drugs entirely, thereby depriving doctors of an important option for the treatment of both acute and chronic pain.

7 Ed. note: Teams may cite this case as a state law decision for the proposition stated in the text.

8 The defendants conceded that Lincoln law does not limit nuisance claims to those involving real property. For purposes of this appeal, the defendants also raise no issues about whether the State can prove proximate cause.

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Notes on contributors

Richard Ausness

Richard Ausness has been a member of the University of Kentucky College of Law faculty since 1973. He has published several books and more than 70 law review articles, along with numerous shorter pieces. Professor Ausness is currently focusing on opioid litigation and has been interviewed on this subject by many newspapers and magazines and has also appeared on a number of radio and television programs and has spoken at various conferences onopioid litigation.