Cherokee Nation, The v. McKesson Corporation et al

Filing 289

ORDER by District Judge Ronald A. White denying 147 Motion to Dismiss. (tls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
THE CHEROKEE NATION,

)
)
Plaintiff,
)
)
v.
)
)
MCKESSON CORPORATION;
)
CARDINAL HEALTH, INC.;
)
CARDINAL HEALTH 110, LLC;
)
AMERISOURCEBERGEN DRUG CORP.; )
CVS HEALTH CORPORATION;
)
CVS PHARMACY, INC.;
)
OKLAHOMA CVS PHARMACY, LLC;
)
WALGREENS BOOTS ALLIANCE, INC.; )
WALGREEN CO.;
)
WAL-MART STORES, INC.,
)
)
Defendants.
)

Case No. CIV-18-056-RAW

ORDER
Before the Court is Defendants CVS Health Corporation, CVS Pharmacy, Inc., Oklahoma
CVS Pharmacy, LLC, Walgreens Boots Alliance, Inc., Walgreen Co., and Wal-Mart Stores, Inc.’s
(Pharmacies) Motion to Dismiss the Cherokee Nation’s (the Nation) First Amended Complaint
[Docket No. 147]. The Nation has filed an omnibus response to this motion and a motion filed by
the pharmacy Defendants in this matter [Docket No. 159]. 1 Pharmacies have filed a reply to the
Nation’s response [Docket No. 173].
In examining a motion to dismiss, the court accepts as true all well-pleaded facts 2 in the
Complaint and construes those facts in the light most favorable to Plaintiffs. Western Watersheds

The court will address the distributor Defendants’ motion to dismiss in a separate order.
The court does not accept as true conclusory statements or legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[T]he tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.”)).

1
2

Project v. Michael, 869 F.3d 1189, 1193 (10th Cir. 2017). To survive a Rule 12(b)(6) motion to
dismiss, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
Plaintiffs must nudge their “claims across the line from conceivable to plausible.” Twombly, 550
U.S. at 570. The well-pleaded facts must “permit the court to infer more than the mere possibility
of misconduct.” Id. at 679.
The Tenth Circuit has held that the “Twombly/Iqbal standard is a middle ground between
heightened fact pleading, which is expressly rejected, and allowing complaints that are no more
than labels and conclusions or a formulaic recitation of the elements of a cause of action, which
the Court stated will not do.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(citing Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “In other words, Rule 8(a)(2)
still lives.” Id. (emphasis added). “Under Rule 8, specific facts are not necessary; the statement
need only give the defendant fair notice of what the claim is and the grounds upon which it rests.”
Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235-36 (10th Cir. 2013) (quoting
Khalik, 671 F.3d at 1191).
BACKGROUND
The Nation instituted this action on January 19, 2018, in the District Court of Sequoyah
County, Oklahoma. Defendants removed the case to this court on February 26, 2018. The United
States Judicial Panel on Multidistrict Litigation transferred this case to the Northern District of
Ohio as part of the national prescription opioid multidistrict litigation. In February 2020, the
Multidistrict Litigation Panel remanded the case back to this court as part of a broad effort to
resolve cases brought by certain types of plaintiffs—in this case, a Native American Tribe. The

2

court currently has before it a pair of motions to dismiss filed by the Distributor Defendants and
Pharmacy Defendants.
The First Amended Complaint encompasses eighty-seven pages and three hundred seventy
paragraphs of allegations [Docket No. 136]. It would not be useful to attempt to summarize that
document and its numerous allegations here. Put simply, the crux of the Nation’s claims against
Pharmacies is that they failed to combat the illegal diversion of prescription opiates to nonmedical
users, contributing greatly to what has become a nationwide epidemic of opiate abuse, addiction,
and overdoses. The Nation alleges four causes of action against Pharmacies: (1) Public Nuisance;
(2) Negligence and Gross Negligence; (3) Unjust Enrichment; and (4) Civil Conspiracy.
Pharmacies seek dismissal of each claim and rely on a wide range of grounds to support their
positions.
ANALYSIS
Initially, the court recognizes the fact that the Northern District of Ohio has analyzed many
of the issues presented in this Motion to Dismiss. The multidistrict litigation (MDL) court first
issued a Report and Recommendation explicitly addressing claims brought by the Muscogee
(Creek) Nation concerning claims of nuisance, negligence, negligence per se, unjust enrichment,
and civil conspiracy against pharmacy defendants. In re National Prescription Opiate Litigation,
MDL No. 1:17-MD-02804, Case No. 1:18-OP-45459, 2019 WL 2468267 (N.D. Ohio
April 1, 2019) (hereinafter Muscogee R&R).

The District Court adopted that Report and

Recommendation almost in its entirety, with the exception being a claim related to negligence per
se, in which the District Court concluded that the Muscogee (Creek) Nation was not the intended
beneficiary of the statutes upon which its claim was founded. In re National Prescription Opiate
Litigation, MDL No. 1:17-MD-02804, Case No. 1:18-OP-45459, 2019 WL 3737023, at *12–13

3

(N.D. Ohio June 13, 2019) (hereinafter Muscogee Order). These rulings are not binding upon this
court; however, to the extent they interpret and apply Oklahoma law and common law applicable
to this case, they are persuasive authority that the court considers and to which it will not turn a
blind eye. 3
I.

Parens Patriae Standing

The Nation seeks to bring its claims pursuant to its own proprietary interests as well as the
doctrine of parens patriae, which allows sovereign entities to bring suits “to prevent or repair harm
to its ‘quasi-sovereign’ interests.” BP America, Inc. v. Oklahoma, 6133d 1029, 1031 n.* (10th.
Cir. 2010) (quoting Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 257 (1972)). To bring
a claim under the doctrine of parens patriae, a sovereign must: (1) “articulate an interest apart
from the interests of particular private parties, i.e., the [sovereign] must be more than a nominal
party”; (2) “express a quasi-sovereign interest”; and (3) allege an “injury to a sufficiently
substantial segment of its population.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592,
607 (1982). In the context of tribal actions, the Northern District of Oklahoma has held that “a
tribe must show that all or a substantial portion of its members have suffered an injury.” Quapaw
Tribe of Oklahoma v. Blue Tee Corp., 653 F. Supp. 2d 1166, 1180 (N.D. Okla. 2009). The

3
The court also notes that one of the primary purposes of MDL is the avoidance of conflicting rulings on pretrial
matters. See Desmond T. Barry, Jr., A Practical Guide to the Ins and Outs of Multidistrict Litigation, 64 Def. Couns.
J. 58, 59 (1997); see also Board of County Commissioners of Seminole County, Oklahoma v. Perdue Pharma L.P.,
Case No. CIV-18-372-JWL, 2019 WL 1474397, at *2 (E.D. Okla. Apr. 3, 2019) (noting that stay pending MDL
transfer protected against risk of inconsistent rulings on all pretrial matters). It seems likely, though not an absolute
certainty, that these motions would have been resolved consistently with the Muscogee Order if they were addressed
while the case remained with the MDL court. It also seems likely that rulings inconsistent with the Muscogee Order,
or others issued by the MDL court, on relevant legal matters would frustrate the goals of MDL, even though this case
sits now as its own litigation separate from the MDL. See Parkinson v. Novartis Pharmaceuticals Corp., 5 F. Supp.
3d 1265, 1272 (D. Ore. 2014)) (refusing to rule in a manner inconsistent with MDL court following remand of case
with pending pretrial motions because doing so would create conflicting pretrial rulings and frustrate purposes of
MDL). Nonetheless, the court has examined the matters raised to reach its own conclusions concerning this motion.
To the extent the court adopts the reasoning of the MDL court, it does so because it has determined that doing so is
proper following its own analysis.

4

Supreme Court has explicitly held that “quasi-sovereign interests” include an “interest in the health
and well-being—both physical and economic—of” a sovereign’s citizens. Snapp, 458 U.S. at 607.
The court concludes that the Nation may brings its claims pursuant to its parens patriae
status. The Nation had adequately alleged that the opioid epidemic has harmed a substantial
segment of its population. These affects go far beyond simple overdose deaths and reach matters
such as broad societal, health, and economic concerns arising from the pervasive presence of illegal
opioids in the Nation’s communities.
The court recognizes that limitations on relief available under this status may be
appropriate. For example, harms to the Nation’s members occurring outside of its borders or
outside of Oklahoma may not be available. The court notes that the Oklahoma Court of Criminal
Appeals recently determined that Congress has not disestablished the Nation’s reservation.
Hogner v. State, --- P.3d ---, 2021 OK CR 4, 2021 WL 958412, at *6 (Okla. Ct. Crim. App. March
11, 2021). The extent of relief available to the Nation concerning claims brought as parens patriae
may better be resolved through further briefing at a later date. For now, it is sufficient to determine
that it may proceed with its claims.
Pharmacies raise concerns about the possibility of double recovery in allowing the Nation
to pursue its claims as parens patriae [Docket No. 147, at 16–17]. Pharmacies specifically point
to Oklahoma’s own public nuisance suit, on which it prevailed against manufacturers of opioids,
which awarded monetary relief to abate the nuisance caused throughout the State of Oklahoma
and which was brought on behalf of all Oklahoma citizens. State ex rel. Hunter v. Purdue Pharma
LP, No. CJ-2017-816, 2019 Okla. Dist. LEXIS 3486 (Okla. Dist. Aug. 26, 2019).
The court acknowledges that double recovery is a hypothetical possibility. At this stage
however, it is nothing more than that. The court believes that the best approach is to allow the

5

nuisance action to move forward and allow evidence to develop. This will allow the court to make
a more accurate determination if double recovery would actually occur if the Nation prevails. The
court is prepared to revisit this matter in the future, including the Nation’s right to bring a suit to
protect its own interests even in light of Oklahoma’s suit, see, e.g., Oklahoma v. Tyson Foods, Inc.,
258 F.R.D. 472, 480–82 (N.D. Okla. 2009) (“Because the State's claims involve allegations of
harm to natural resources in which the Cherokee Nation claims an interest, a judgment for damages
in this case would either impinge on the Cherokee Nation's sovereign and statutory rights or leave
defendants exposed to subsequent suit by the Cherokee Nation, or both.”), but it does not believe
this issue to be an appropriate basis for dismissal at this stage of the proceedings.
II.

Learned Intermediary Doctrine

Pharmacies argue that Oklahoma’s learned intermediary doctrine precludes the claims
against them [Docket No. 147, at 5–11]. In Oklahoma, the learned intermediary doctrine may
“shield pharmacists from being required to ‘second guess’ a physician’s medical decisions
embodied in an otherwise authorized and legally made prescription,” but this shield falls away
when a “prescription ‘is unreasonable on its face,’ e.g., it prescribes facially bizarre quantities or
dosages clearly outside of any acceptable range, or clearly inappropriate drugs.” Carista v. Valuck,
394 P.3d 253, 256 (Okla. Ct. App. 2016). Having reviewed the Nation’s allegations, the court
concludes that the Nation has adequately set forth allegations that an exception to the learned
intermediary doctrine should apply, in that it has sufficiently alleged Pharmacies filled
prescriptions that were unreasonable on their face. The court expresses no opinion, at this time,
as to whether the learned intermediary doctrine would apply to the facts of this case in the first
instance, thus requiring an exception.

See Muscogee Order, 2019 WL 3737023, at *5–6

6

(expressing uncertainty that, under the facts alleged, the learned intermediary doctrine would apply
at all).
III.

Free Public Services Doctrine

Pharmacies argue that the “free public services doctrine,” also known as the “municipal
cost recovery rule,” precludes the Nation from recovering the costs it incurred in providing free
public services related to emergency health services, law enforcement, fire services, etc. [Docket
No. 147, at 22]. The court declines to bar any of the Nation’s claims on this basis. First, there are
no Oklahoma cases adopting this doctrine to preclude the recovery of costs related to public
services. Second, abatement of a public nuisance is a legitimate basis for recovery related to the
performance of public services. City of Flagstaff v. Atchison, Topeka and Santa Fe Railway Co.,
719 F.2d 322, 324 (9th Cir. 1983); In re Opioid Litigation, No. 400000/2017, 2018 WL 3115102,
at *10 (N.Y. Sup. Ct., Suffolk County, June 18, 2018). Third, the court recognizes that both the
MDL court as well as other state courts have rejected application of this doctrine where the harms
arise from allegedly continuous, persistent, and ongoing wrongful conduct—as opposed to discrete
instances of tortious behavior causing discrete expenditures of government resources.

See

Muscogee Order, 2019 WL 3737023, at *8; Muscogee R&R, 2019 WL 2468267, at *8–9; City of
Everett v. Purdue Pharma L.P., Case No. C17-209RSM, 2017 WL 4236062, at *7 (W.D. Wash.
Sept. 25, 2017); In re Opioid Litigation, 2018 WL 3115102, at *10; Jennings v. Purdue Pharma
L.P., 2019 WL 446382, at *6; see also State v. Black Hills Power, Inc., 354 P.3d 83, 85–86 (Wyo.
2015) (adopting municipal cost recovery rule in case concerning a wildfire caused by power
company’s negligence). The court believes that rejection of the free public services doctrine is
appropriate for these same reasons. However, the court is willing to entertain future arguments
that the Nation’s recovery should be limited to those expenditures that “exceed the ordinary costs

7

of providing those services . . . if evidence establishes that they were incurred” because of
Pharmacies’ wrongful conduct. Muscogee R&R, 2019 WL 2468267, at *9.
IV.

Statute of Limitations

Pharmacies assert that the Nation’s claims are barred by Oklahoma’s two-year statute of
limitations on tort claims.
The affirmative defense that a plaintiff’s claims fall outside of the statute of limitations is
often a question of fact not appropriately resolved through a motion to dismiss. Miller v. Liberty
Mutual Fire Insurance Co., 191 P.3d 1221, 1227 (Okla. 2008). This principle does not apply,
however, “where the facts establishing the affirmative defense are apparent on the face of the
complaint.” SFF-TIR, LLC v. Stephenson, 250 F. Supp. 3d 856, 996 (N.D. Okla. 2017). “If the
complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations
period, then the defendant may move for dismissal under [R]ule 12(b)(6).” Id. at 997.
The court disagrees with the Pharmacies’ assertion that the Nation’s First Amended
Complaint demonstrates that its claims accrued in 2014. Merely referencing a particular set of
data concerning a given timeframe does not necessarily mean the Nation’s claims accrue solely
based on that timeframe. See State of Vermont v. Perdue Pharma L.P., 7575-9-18 CNCV, Ruling
on Motion to Dismiss, at 2 (Vt. Super. Ct. March 19, 2019). Indeed, the Nation alleges that
Pharmacies “continue to ignore their obligations to prevent opioid diversion.” [Docket No. 136,
at ¶ 228 (emphasis added)]. As such, the court will not rule on Pharmacies’ statute of limitations
defense at this time. 4

The court also notes that the Nation alleges various grounds for tolling the statute of limitations, which provides an
additional basis for declining to rule on the issue at this time.

4

8

V.

Proximate Causation

Pharmacies argue that the Nation has failed to allege that their actions proximately caused
the Nations injuries and its claims must therefore be dismissed [Docket No. 147, at 18–21]. This
argument must be rejected because “[t]he existence of proximate cause is generally a question of
fact for the jury to determine and becomes a question of law only if there is no evidence from
which a reasonable person could find a causal nexus between the defendant's negligent act and the
plaintiff's injury.” Jones v. Mercy, 155 P.3d 9, 14 (Okla. 2006). “Foreseeability is an essential
element of proximate cause in Oklahoma, and it is the standard by which proximate cause, as
distinguished from the existence of a mere condition, is to be tested.” Tomlinson v. Love’s Country
Stores, Inc., 854 P.2d 910, 916 (Okla. 1993) (internal quotation marks omitted). “Whether a
negligent event's injurious consequences could have been reasonably foreseen presents a jury
question. Whether an intervening act is foreseeable also calls for an evaluative determination by
the trier of fact.” Lockhart v. Loosen, 943 P.2d 1074, 1079–80 (Okla. 1997). Whether the harms
the Nation alleges were reasonably foreseeable consequences of the wrongful conduct upon which
the Nation’s claims are premised—the failure to take effective steps to prevent illegal diversion of
prescription opiates—is a fact question. For the time being, the Nation’s allegations are adequate
to survive a motion to dismiss.
VI.

Public Nuisance

Pharmacies claim that the Nations cause of action for public nuisance must be dismissed
as a matter of law because its allegations are unconnected to the use of real property [Docket
No. 147, at 24–28]. The court declines to adopt that position.
In Oklahoma, as relevant to this case, “a nuisance consists in unlawfully doing an act, or
omitting to perform a duty, which act or omission either” “annoys, injures or endangers the

9

comfort, repose, health, or safety of others” or “in any way renders other persons insecure in life,
or in the use of property.” 5 Okla. Stat. tit. 50, § 1. Public nuisances are those that “affect[] at the
same time an entire community or neighborhood, or any considerable number of persons, although
the extent of the annoyance or damage inflicted upon the individuals may be unequal.” Okla. Stat.
tit. 50 § 2.
Pharmacies point to Fairlawn Cemetery Association v. First Presbyterian Church, U.S.A.,
for the principle that “[a] nuisance, public or private, arises where a person uses his own property
in such a manner as to cause injury to the property of another.” 496 P.2d 1185, 1187 (Okla. 1972).
This statement was made, however, in the context of distinguishing a nuisance from a trespass
where a church piled dirt against the cemetery’s wall, causing the wall to lean and crack. Id. at
1186–87. It was not a categorical statement that nuisances can only arise from use of real property,
but a statement that the church’s use of its own land was not a nuisance because it was, in fact, a
trespass. 6
While the court admits to a bit of skepticism regarding the viability of a nuisance claim
without concomitant use of real property, that conclusion is not presently persuasive. See Okla.
Stat. tit. 50, § 1; Oklahoma Uniform Civil Jury Instruction No. 33.2. Most nuisances do arise from
property use; however, that does not necessarily mean that nuisances can only arise from property
use. Although the case is more than a century old, the Oklahoma Supreme Court has held that

This definition of a nuisance also reflects the elements that must be proven to prevail on a claim for nuisance. See
Oklahoma Uniform Civil Jury Instruction No. 33.2.
6
The distributor Defendants raised a similar argument in their own motion to dismiss [Docket No. 146, at 21–24],
citing Laubenstein v. Bode Tower, L.L.C., which stated that nuisances “arise[] from an unreasonable, unwarranted, or
unlawful use of property.” 392 P.3d 706, 709 (Okla. 2016). That argument was similarly unpersuasive because
Laubenstein made that statement in the context of a case involving property use that was not unlawful. Id. The
question in that case was whether the manner in which the property was used created a nuisance, not whether use of
property was a necessary predicate for a nuisance. Id. (concluding that no nuisance is created where cellular tower
was lawfully constructed and “nuisance claim was predicated entirely on [plaintiff’s] distinctive aesthetic
preferences”).
5

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violations of anti-trust laws constitute a public nuisance. Territory v. Long Bell Lumber Co., 99
P. 911, 920 (Okla. 1908). Specifically, the Oklahoma Supreme Court held that secret agreements
to fix supply and prices invaded the public’s rights and interests to free and open markets. Id.
Additionally, an Oklahoma trial court rejected opioid manufacturers’ similar property-based
arguments, finding that Oklahoma’s statute simply does not require a connection to real property
to maintain a nuisance action. Hunter, 2019 Okla Dist. LEXIS 3486, at *32–33.
In light of the totality of Pharmacies’ nuisance defenses, the court is cognizant that this
rather novel use of nuisance has the potential to morph into the “tort that ate the world.”
Nevertheless, the First Amended Complaint has at least stated a nuisance claim and the allegations
are adequate to proceed.
VII.

Controlled Substances Act

Pharmacies appear to raise two primary arguments with respect to their duties under the
Controlled Substances Act (CSA). 7 First, that the CSA does not impose corporate-level liability
for dispensing of opioids; instead, it is limited to pharmacists [Docket No. 147, at 11–13]. Second,
that the Nation cannot enforce the CSA’s regulations through a private right of action [Id. at 13–
15].
Pharmacies do not appear to raise the argument that they lack duties under the CSA as
distributors of opioids 8 but, to the extent that they do, the court adopts the conclusions it reached
with respect to distributor Defendants’ arguments that they lacked duties under the CSA.

The Nation alleges violations of the duties imposed by the CSA serve as the “unlawful act” or “omitted duty” that
gave rise to the public nuisances for which they seek abatement [See Docket No. 136, at ¶ 321 (alleging failures to
perform duties imposed by the CSA)].
8
Pharmacies in this case do distribute opioids to their individual pharmacy locations from which they are dispensed
to patients.
7

11

As for Pharmacies’ argument concerning the CSA not imposing corporate-level obligations
to safeguard against illegal diversion of opioids, the court disagrees. Pharmacies argue that the
CSA’s dispensing duties apply only to individual pharmacists, not their corporate employers [Id.
at 11–12]. Pharmacies admit they, as registrants, have obligations under the CSA to “provide
effective controls and procedures to guard against theft and diversion of controlled substances,”
21 C.F.R. § 1301.71(a), but argue that their obligations are limited to physical security of
controlled substances, not the dispensing of those substances. The DEA has, in fact, found
pharmacy-level responsibility for failing to properly monitor the dispensing practices of
pharmacists, and has revoked registrations for pharmacies in such circumstances. See e.g., Holiday
CVS, L.L.C., d/b/a CVS/Pharmacy Nos. 219 and 5195, Decision and Order, 77 Fed. Reg. 6231601, 2012 WL 4832770 (Drug Enf’t. Admin. Oct. 12, 2012) (revoking registration of two
pharmacies because their pharmacists dispensed prescriptions for controlled substances that raised
red flags in violation of 21 C.F.R. § 1306.04(a), finding that pharmacists completely abdicated
their role to exercise professional judgment in dispensing prescriptions for addictive substances)).
In that sense, the court concludes that pharmacies, not merely pharmacists, have obligations to
“resolve red flags” before dispensing controlled substances concerning suspicious prescriptions.
See id., at 62317–23. Whether those red flags existed, whether they were adequate to establish
that pharmacists “subjectively believed there was a high probability” that the prescriptions were
legitimate, and whether they were adequately resolved is a fact question the court does not explore
at this time. See Superior Pharmacy I and Superior Pharmacy II, Decision and Order, 81 Fed.
Reg. 31310-01, 2016 WL 2866659 (Drug Enf’t Admin. May 18, 2016) (setting forth requirements
for showing that a pharmacist “knowingly” filled a prescription that was not issued “for a

12

legitimate medical purpose . . . in the usual course of professional treatment” (quoting 21 C.F.R.
1306.04(a)).
Insofar as Pharmacies argue that the Nation cannot enforce the CSA through a private right
of action, the court notes that the Nation does not seek to simply enforce the CSA and its
provisions. The Nation argues that Pharmacies violated their duties under the CSA, and that in
violating those duties, their actions ultimately led to a public nuisance under Oklahoma law. The
court rejects this argument.
VIII. Preemption
Pharmacies briefly argue that the Nation’s claims that rely on violations of the CSA are
preempted under the doctrine of “obstacle preemption,” because punishing violations of the CSA
through a private cause of action, such as public nuisance, “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress” in creating the
CSA, because it leads to conflicting methods of enforcement [Docket No. 147, at 15–16 (quoting
Arizona v. United States, 567 U.S. 387, 399 (2012)]. The court declines to find the Nation’s claims
preempted, noting that the MDL court rejected the same arguments, see In re National Prescription
Opiate Litigation, Case No. 1:17-md-2804, 2019 WL 4178591, at *12 (Sept. 3, 2019) (citing In re
National Prescription Opiate Litigation, Case No. 1:17-md-2804, 2018 WL 6628898 (Dec. 19,
2018) (adopting report and recommendation findings concerning obstacle preemption)), and also
points out that the case Pharmacies primarily rely upon, Arizona v. United States, was a field
preemption case, and the Supreme Court held that any attempt to regulate in the area of alien
registration was preempted. 567 U.S. at 401.
IX.

Negligence

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Pharmacies assert that the Nation’s negligence cause of action should be dismissed
because they have no liability under the Oklahoma Products Liability Act, Okla. Stat. tit. 76
§ 57.2(G) and they owed no duty of care to the Nation [Docket No. 147, at 28–32].
“The elements of the tort of negligence are 1) a duty of care owed by defendant to plaintiff,
2) defendant's breach of that duty, and 3) injury to plaintiff caused by defendant's breach of that
duty.” Lowery v. Echostar Satellite Corp., 160 P.3d 959, 964 (Okla. 2007).
a. Innocent Seller
Pharmacies claim that Oklahoma law precludes holding them liable for any negligence
arising from the distribution and dispensing of opioids because of its innocent seller provision,
which states:
G. A product seller other than a manufacturer is liable to a claimant on the basis of
negligence if the claimant establishes that:
1. The product seller sold the product involved in such action;
2. The product seller did not exercise reasonable care:
a. in assembling, inspecting, or maintaining such product, or
b. in passing on warnings or instructions from such product's
manufacturer about the dangers and proper use of such product;
and
3. Such failure to exercise reasonable care was a proximate cause of the
harm complained of by the claimant.
Okla. Stat. tit. 76 § 57.2(G); [Docket No. 147, at 31–32].
The court declines to find this statutory provision applicable to the Nation’s claim because
it applies only to products liability actions premised on defective products. First, the court notes
that Pharmacies do not cite a single case supporting the proposition that the innocent seller
provision applies to matters unrelated to defective products. Second, Section 57 as a whole is very
clearly concerned with defective products and limiting liability arising from such claims—it is
titled “Inherently Unsafe Product Liability Limitation.” See Okla. Stat. tit. 76 § 57. Section 57.2
provides a variety of rebuttable presumptions concerning liability and any associated limitations.
14

Id. at § 57.2. This is not a products liability claim premised on a defective product; it is a claim
that Pharmacies negligently failed to prevent the diversion of highly addictive opioid medications.
It is not primarily the product Pharmacies sold that has led to this lawsuit; it is Pharmacies’ alleged
wrongful conduct in selling that product.
b. Duty of Care
Whether the defendant owed the plaintiff a duty of care is a question of law for the court
in a negligence action. Lowery, 160 P.3d at 964.
The most important consideration in establishing duty is foreseeability. As a
general rule, a defendant owes a duty of care to all persons who are foreseeably
endangered by his conduct with respect to all risks which make the conduct
unreasonably dangerous. Foreseeability as an element of duty establishes a zone
of risk, that is, whether the conduct creates a generalized and foreseeable risk of
harming others.
Trinity Baptist Church v. Brotherhood Mutual Insurance Services, LLC, 341 P.3d 75, 84 (Okla.
2014) (internal citations and quotation marks omitted) (quoting Brown v. State Farm Fire and
Casualty Co., 58 P.3d 217, 219 (Okla. Ct. App. 2002)). 9 “[A] legal duty arises when a human
endeavor creates a generalized and foreseeable risk of harming others.” Delbrel v. Doenges Bros.
Ford, Inc., 913 P.2d 1318, 1321 (Okla. 1996) (citing McCain v. Florida Power Corp., 593 So.2d
500, 503 (Fla. 1992)).
The court concludes that the Nation has adequately alleged facts demonstrating Pharmacies
owed it a duty because it was foreseeable that negligently failing to prevent the diversion of
addictive opioids, including allegedly “oversupplying the market” with such opioids, would lead

9
The court notes that Trinity abrogated the holding in Brown, which adopted a minority view that an independent
insurance adjuster hired by an insurer owed a duty of care to the insured. Trinity rejected that conclusion because
“The special relationship between the insurer and insured, and the implied duty of good faith and fair dealing on the
part of the insurer, represent a unique factual departure from the decisions of this Court relied upon by the Court of
Civil Appeals in Brown. . . .” 341 P.3d at 86.

15

to abuse, addiction, and overdoses, and that Nation would pay the price. On this point, the court
agrees with the MDL court’s determination regarding foreseeability:
When there is a flood of highly addictive drugs into a community it is foreseeable—
to the point of being a foregone conclusion—that there will be a secondary, “black”
market created for those drugs. It is also foreseeable that local governments will be
responsible for combatting the creation of that market and mitigating its effects.
In re National Prescription Opiate Litigation, MDL 2804, Case No. 1:17-md-2804, 2018 WL
6628898, at *19 (N.D. Ohio Dec. 19, 2018). 10
X.

Unjust Enrichment

Pharmacies dispute whether the Nation has adequately pleaded its claim for unjust
enrichment. Specifically, they contend that the Nation has not adequately alleged it enriched
Pharmacies because the Nation’s expenditures did not put money into the hands of any Pharmacy
Defendant [Docket No. 147, at 32–33]. The Nation responds that it would be unjust for Pharmacies
to retain the benefit of the profits they derived through their conduct surrounding the distribution
and dispensing of opioids while the Nation must bear the costs to remedy the harms incurred by
that distribution and dispensing [Docket No. 159, at 51–54].
“Unjust enrichment is a condition which results from the failure of a party to make
restitution in circumstances where not to do so is inequitable, i.e., the party has money in its hands
that, in equity and good conscience, it should not be allowed to retain.” Oklahoma Dept. of
Securities ex rel. Fought v. Blair, 231 P.3d 645, 658 (Okla. 2010). Unjust enrichment typically
consists of “(1) the unjust (2) retention of (3) a benefit received (4) at the expense of another.” Id.
The Oklahoma Supreme Court has held:
[U]njust enrichment arises not only where an expenditure by one person adds to the
property of another, but also where the expenditure saves the other from expense
or loss. One is not unjustly enriched, however, by retaining benefits involuntarily
The MDL court later analyzed this issue under Oklahoma law and found that this holding remained applicable.
Muscogee Order, 2019 WL 3737023, at *6.
10

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acquired which law and equity give him absolutely without any obligation on his
part to make restitution.
City of Tulsa v. Bank of Oklahoma, N.A., 280 P.3d 314, 319 (Okla. 2011) (quoting McBride v.
Bridges, 215 P.2d 830, 832 (Okla. 1950)). To recover for unjust enrichment, “there must be
enrichment to another, coupled with a resulting injustice.” Id. (quoting Teel v. Public Service Co.
of Oklahoma, 797 P.2d 391, 398 (Okla. 1985).
The court notes that an Oklahoma trial court rejected similar arguments asserted by opioid
manufacturers seeking dismissal of an unjust enrichment claim in the case brought by the State of
Oklahoma against those manufacturers. See Hunter v. Purdue Pharma L.P., Case No. CJ-2017816, Defendants’ Joint Motion to Dismiss for Failure to State a Claim (Okla. Dist. Ct. Sept. 22,
2017); id., Order (Okla. Dist. Ct. Dec. 6, 2017). The State of Oklahoma’s Petition alleged facts in
support of its unjust enrichment claim that relied on similar, though not identical, allegations. See
id., Petition, at 30 (Okla. Dist. Ct. June 30, 2017); [Docket No. 136, at 78–79]. The court further
notes that the MDL court rejected Pharmacies’ position and adopted those the Nation has put forth,
specifically that a plaintiff paying the costs of the “negative externalities” caused by a defendant’s
conduct is a form of enrichment because the defendant does not have to pay the costs of its own
conduct. Muscogee Order, 2019 WL 3737023, at *8–9; Muscogee R&R, 2019 WL 2468267, at
*34–35. The MDL court’s decision was based on its own analysis of Oklahoma law, which it
found provided a “broad view of unjust enrichment liability to vindicate a wide variety of equitable
principles,” to conclude that the Oklahoma Supreme Court would adopt this “negative
externalities” theory of equitability. Muscogee Order, 2019 WL 3737023, at *8–9.
The court agrees with the MDL court’s analysis, and it believes this decision is supported
by the principles of unjust enrichment law to which Oklahoma adheres. Specifically, the principles
that “[U]njust enrichment arises not only where an expenditure by one person adds to the property
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of another, but also where the expenditure saves the other from expense or loss,” City of Tulsa,
280 P.3d at 319 (emphasis added), and also that unjust enrichment occurs when a defendant “has
money in its hands that, in equity and good conscience, it should not be allowed to retain.” Fought,
231 P.3d at 658. Taking these into account, the court will allow the Nation’s claim to move
forward and permit it the opportunity to show, if necessary, that it is equitably entitled to restitution
from Pharmacies.
XI.

Civil Conspiracy

Pharmacies’ opposition to the Nation’s claim for civil conspiracy rests on its purported
failure to allege an underlying intentional tort and the absence of an allegation concerning an illicit
agreement [Docket No. 147, at 33–34]. The Nation responds that its claims for gross negligence
and public nuisance satisfy the underlying tort requirement and that it has alleged an agreement
insofar as an agreement may be inferred from the allegations it has set forth [Docket No. 159, at
54–56].
“To state a claim for civil conspiracy, Plaintiffs must allege: (1) two or more persons;
(2) an object to be accomplished; (3) a meeting of the minds on the object or course of action;
(4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.” Allen v. IM
Solutions, LLC, 94 F. Supp. 3d 1216, 1233 (E.D. Okla. 2015). Further, civil conspiracy is not
actionable as an independent tort, but instead requires “the existence of an underlying tort or
wrongful act committed by one or more of the conspirators in furtherance of the conspiracy.” Id.
Additionally, “[t]he agreement is a matter of inference from the facts and circumstances of the
alleged conspirators. The question is whether the circumstances, considered as a whole, show that
the parties united to accomplish the fraudulent scheme.”

18

North Texas Production Credit

Association v. McCurtain County National Bank, 222 F.3d 800, 815 (10th Cir. 2000) (quoting
Shadid v. Monsour, 746 P.2d 685, 689 (Okla. Ct. App. 1987).
The court concludes that the Nation’s claim for public nuisance satisfies the underlying tort
requirement. Public nuisance, if committed intentionally, may constitute an intentional tort. See
Restatement (Second) of Torts, §825(b)–(c) (noting that an invasion causing a nuisance may be
intentional where the defendant “act[s] for the purpose of causing it or know[s] that it is resulting
or is substantially certain to result from his conduct,” and providing an illustration that one who
initially does not recognize that his actions cause harm, but continues to perform those actions
after learning of the harm, has created an intentional invasion); see also Tyson Foods, 258 F. Supp.
2d at 1301 (recognizing that public nuisance is an intentional tort when the conduct alleged is
intentional in nature). The court therefore rejects the first of Pharmacies’ arguments.
The court further rejects Pharmacies’ contention that the Nation has not adequately alleged
a meeting of the minds. Taking the allegations in the light most favorable to the Nation, the Nation
has adequately alleged facts that, if true, may permit a factfinder to infer the existence of an
agreement to accomplish an objective through unlawful means. As such, the court will not dismiss
the Nation’s civil conspiracy claim at this time.
XII.

Incorporated Arguments

Pharmacies have sought to “incorporate by reference all applicable arguments set out in
Distributor Defendants’ Motion to Dismiss.” [Docket No. 147, at 4 n.2]. The court rejects those
arguments here for the reasons set out in its order addressing distributor Defendants’ Motion to
Dismiss. The court further discourages such incorporations of arguments in future briefings. By
incorporating arguments in this manner, Pharmacies have effectively increased the length of their
briefing beyond that granted by the court. If permitted, Defendants in this case could “double-

19

team” the Nation, splitting arguments between their filings, or raising alternative grounds in
support of the same arguments, and then incorporating those arguments not raised in their own
motions.
CONCLUSION
Accordingly, Pharmacies’ Motion to Dismiss [Docket No. 147] is hereby DENIED.
IT IS SO ORDERED this 29th day of March, 2021.

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