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State v. Purdue Pharma L.P.

Superior Court of Rhode Island, Providence

August 16, 2019

STATE OF RHODE ISLAND, by and through, PETER NERONHA, Attorney General, Plaintiff,
v.
PURDUE PHARMA L.P.; PURDUE PHARMA INC.; THE PURDUE FREDERICK COMPANY, INC.; RHODES PHARMACEUTICALS L.P.; RHODES TECHNOLOGIES; RHODES TECHNOLOGIES INC.; RICHARD S. SACKLER; INSYS THERAPEUTICS, INC.;[1] JOHN N. KAPOOR;[2] TEVAPHARMACEUTICALS USA, INC.; CEPHALON, INC.; MALLINCKRODT PLC; MALLINCKRODT, LLC; SPECGX, LLC; CARDINAL HEALTH, INC.; MCKESSON CORPORATION d/b/a MCKESSON DRUG COMPANY; and AMERISOURCEBERGEN DRUG CORPORATION, Defendants.

         Providence County Superior Court

          DECISION

          GIBNEY, P.J.

         Before this Court are motions by Defendants Purdue Pharma L.P.; Purdue Pharma Inc.; The Purdue Frederick Company, Inc. (collectively Purdue or Purdue Defendants);[3] Rhodes Pharmaceuticals L.P.; Rhodes Technologies; Rhodes Technologies Inc. (Rhodes Technologies Inc. with Rhodes Pharmaceuticals L.P. and Rhodes Technologies, Rhodes or Rhodes Defendants); Insys Therapeutics Inc. (Insys); Teva Pharmaceuticals USA, Inc. (Teva); Cephalon, Inc. (Cephalon); Mallinckrodt plc; Mallinckrodt, LLC (Mallinckrodt, LLC with Mallinckrodt plc, Mallinckrodt or Mallinckrodt Defendants); SpecGx, LLC (SpecGx)[4] (SpecGx with Purdue Defendants, Rhodes Defendants, Mallinckrodt Defendants, Insys, Teva, Cephalon, Richard S. Sackler (Sackler); and John N. Kapoor (Kapoor) (collectively Manufacturer Defendants, Marketing Defendants, or Manufacturers); Cardinal Health, Inc. (Cardinal); McKesson Corporation d/b/a McKesson Drug Company (McKesson); and AmerisourceBergen Drug Corporation (AmerisourceBergen) (AmerisourceBergen collectively with Cardinal and McKesson, Distributor Defendants or Distributors) (collectively Defendants) to dismiss the Amended Complaint of the State of Rhode Island (Plaintiff or the State). Defendants argue that the State has failed to state a claim upon which relief can be granted under Super. R. Civ. P. 12(b)(6). Sackler, Kapoor, [5] and Mallinckrodt plc move to dismiss for lack of personal jurisdiction under Super. R. Civ. P. 12(b)(2). In addition to its 12(b)(6) motion, Rhodes moves to dismiss the claims against it pursuant to Super. R. Civ. P. 8 and 9, and alternately moves for a more definite statement under Super. R. Civ. P. 12(e). The State objects to all Defendants' motions. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.

         I

         Facts and Travel

         This matter arises from a public health crisis in Rhode Island, and across the country, brought on by unprecedented levels of addiction, overdose, and death associated with the use and abuse of prescription opioid pharmaceutical products. On June 25, 2018, the State, by and through its Attorney General, filed a Complaint against manufacturers and distributors of pharmaceutical opioids in response to this epidemic. Defendants named in the Complaint included Purdue and Insys, manufacturers of prescription opioids; along with Cardinal, McKesson, and AmerisourceBergen, distributors of opioids. In the Complaint, the State brought counts of public nuisance; violations of the Rhode Island State False Claims Act (the State False Claims Act), G.L. 1956 §§ 9-1.1-1 et seq.; fraud and fraudulent misrepresentation; negligence, negligence per se, gross negligence, and negligent misrepresentation; and unjust enrichment. Plaintiff alleged that these defendants conducted a campaign to unlawfully promote and distribute opioids in Rhode Island and sought to recover for the resulting damages.

         On September 28, 2018, the defendants named in the Complaint moved to dismiss. The manufacturers (Purdue Defendants and Insys) argued that the Complaint failed due to (1) federal preemption of all claims; (2) lack of an adequate chain of causation; (3) Rhode Island Supreme Court precedent contrary to the public nuisance claim; (4) failure of the State's fraud allegations due to lack of particularity; (5) lack of a duty required for the negligence claim; and (6) improper pleading of unjust enrichment. In a separate motion to dismiss and supporting memorandum, the distributors (Cardinal, McKesson, and AmerisourceBergen) moved to dismiss arguing that (1) the public nuisance claim should be dismissed because the State fails to plead the requisite public right and control over the instrumentality at the time of injury; (2) the negligence claims should be dismissed for lack of a duty or breach of duty; (3) the unjust enrichment claim should be dismissed; and (4) all claims fail for additional reasons including lack of proximate causation, the derivative injury rule, the free public services doctrine, and the economic loss doctrine. The State objected to these motions to dismiss.

         On November 19, 2018, the State filed an Amended Complaint with the same five counts brought in the Complaint. Most significantly, the State joined ten additional defendants including the Rhodes Defendants, the Mallinckrodt Defendants, SpecGx, Teva, Cephalon, Sackler, and Kapoor. Rhodes, Teva, Cephalon, Mallinckrodt, and SpecGx are manufacturers of prescription opioid pharmaceutical products. Sackler is a board member and the former President and Co-Chairman of Purdue. Kapoor is the former Chairman of Insys.

         In the Amended Complaint, the State brings Counts IV (Negligence, Negligence Per Se, Gross Negligence, and Negligent Misrepresentation) and V (Unjust Enrichment) against all named Defendants. The State brings the remaining counts against select Defendants, only. The State brings Count I, Public Nuisance, against Purdue Defendants, Rhodes, Sackler, Mallinckrodt, SpecGx, Teva, Cephalon, and Distributor Defendants. The State brings Count II, Violations of the State False Claims Act, against Purdue Defendants, Rhodes, Sackler, Insys, and Kapoor. Lastly, the State brings Count III, Fraud and Fraudulent Misrepresentation, against Purdue Defendants, Rhodes, Insys, Mallinckrodt, SpecGx, Teva, Cephalon, Sackler, and Kapoor.

         On January 15, 2019, all Defendants moved to dismiss the Amended Complaint. Manufacturer and Distributor Defendants argue that the State has failed to state a claim upon which relief can be granted pursuant to Super. R. Civ. P. 12(b)(6). Sackler, Kapoor, and Mallinckrodt plc move to dismiss for lack of personal jurisdiction under Super. R. Civ. P. 12(b)(2).[6] Rhodes Defendants argue that Plaintiff has failed to state a claim under Super. R. Civ. P. 8 and Super. R. Civ. P. 9, and alternately move for a more definite statement under Super. R. Civ. P. 12(e) if the State's claims against them are not dismissed.

         The State objects to all Defendants' motions. This Court heard argument on March 6, 2019; March 7, 2019; and April 25, 2019.[7]

         II

         Standard of Review

         It is well-settled that the sole function of a motion to dismiss is to test the sufficiency of the complaint. Ryan v. State, Department of Transportation, 420 A.2d 841, 842 (R.I. 1980); Dutson v. Nationwide Mutual Insurance Co., 119 R.I. 801, 803-04, 383 A.2d 597, 599 (1978). "[D]efenses may at the option of the pleader be made by motion [including] (2) [l]ack of jurisdiction over the person; . . . [and] (6) [f]ailure to state a claim upon which relief can be granted." See Super. R. Civ. P. 12(b).

         '"When ruling on a Rule 12(b)(6) motion, the trial justice must look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor."' Estate of Sherman v. Almeida, 747 A.2d 470, 473 (R.I. 2000) (quoting Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi, 557 A.2d 1232 (R.I. 1989)). "A motion to dismiss under Rule 12(b)(6) will only be granted 'when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim.'" Bruno v. Criterion Holdings, Inc., 736 A.2d 99 (R.I. 1999) (quoting Folan v. State/Department of Children, Youth and Families, 723 A.2d 287, 289 (R.I. 1999)). On the other hand, "[i]n order to withstand a defendant's Rule 12(b)(2) motion to dismiss a complaint for lack of in personam jurisdiction, a plaintiff must allege sufficient facts to make out a prima facie case of jurisdiction." Bendick v. Picillo, 525 A.2d 1310, 1311-12 (R.I. 1987) (citing Ben's Marine Sales v. Sleek Craft Boats, 502 A.2d 808, 809 (R.I. 1985)).

         III

         Analysis

         In the Amended Complaint, the State brings five counts, including Count I, Public Nuisance; Count II, Violations of the State False Claims Act; Count III, Fraud and Fraudulent Misrepresentation; Count IV, Negligence, Negligence Per Se, Gross Negligence, and Negligent Misrepresentation; and Count V, Unjust Enrichment, against seventeen Defendants. However, the State does not bring all counts against all Defendants. Therefore, the Defendants have submitted joint memoranda-including a motion by Manufacturer Defendants and another from Distributor Defendants-in support of their motions to dismiss while supplementing the arguments therein with individual memoranda. Accordingly, the Court will address both individual and joint arguments in its analysis and may reference previous sections due to the significant overlap between Defendants' arguments and the State's counts against them.

         First, Manufacturer Defendants argue that Plaintiff failed to state a claim upon which relief may be granted because (1) the State does not adequately plead causation, (2) the public nuisance claim fails under Rhode Island law, (3) the State does not support fraud based claims with particularity, (4) the State does not plead actionable negligence claims, and (5) the State does not plead an actionable claim for unjust enrichment. Distributor Defendants incorporate their arguments from their September 28, 2018 motion to dismiss, [8] while supplementing these arguments with three recent decisions including City of New Haven v. Purdue Pharma, L.P. (the New Haven Decision); Floyd v. Feygin; and State of Rhode Island v. Atlantic Richfield Co. See No. X07-HHD-CV-17-608134-S (Conn. Super. Ct. Jan. 8, 2019); 2018 WL 6528728 (N.Y. Sup. Ct. Dec. 6, 2018); 357 F.Supp.3d 129 (D.R.I. 2018). Distributor Defendants argue that these persuasive cases support this Court's dismissal of all counts against them.

         Teva and Cephalon submit a joint memorandum to supplement Manufacturer Defendants' memorandum. Therein, Teva and Cephalon argue (1) that the State has not pled any misrepresentation or omission by Teva or Cephalon; (2) the State has not pled facts to show that Teva or Cephalon caused the State any harm; (3) claims against Teva and Cephalon fail for lack of injury; (4) the State's failure to prevent diversion theory fails; and (5) the State has not alleged any misconduct by Teva.

         Mallinckrodt, LLC and SpecGx present further arguments in support of Manufacturer Defendants' motion to dismiss.[9] Mallinckrodt, LLC and SpecGx argue that (1) they cannot be held liable for alleged statements by third parties based on allegations of funding alone or alleged unactionable marketing statements, and (2) Plaintiff's diversion theory fails to state a claim against Mallinckrodt because the State has not adequately alleged facts of proximate causation and that the State's group pleading fails to allege diversion claims against Mallinckrodt.

         Sackler moves to dismiss based on lack of personal jurisdiction and failure to state a claim upon which relief can be granted. Sackler argues that the State fails to establish jurisdiction over him because the State has not properly pled general or specific personal jurisdiction. He further asserts that the State has failed to state a claim upon which relief can be granted because (1) Sackler has no personal liability for alleged corporate conduct, (2) the State's fraud-based claims are flawed, (3) negligence claims against Sackler are inadequate, (4) the public nuisance claim should be dismissed because Sackler did not participate in the alleged misconduct that resulted in the nuisance, (5) the State's unjust enrichment claim should be dismissed because the State has failed to make allegations with respect to this count against Sackler and cannot seek to hold him liable for unjust enrichment on behalf of Purdue, and (6) the State has failed to adequately plead causation.

         In their individual memorandum supplementing Manufacturer Defendants' motion to dismiss, Rhodes Defendants argue that (1) Plaintiff has failed to state a claim under Super. R. Civ. P. 8-because the State fails to give Rhodes adequate notice of the claims against them-and Super. R. Civ. P. 9-because (1) the State fails to plead fraud-based claims with particularity; and (2) the State's claims against Rhodes involving generic medications are preempted by federal law. Alternately, if the State's claims against Rhodes are not dismissed, Rhodes moves for a more definite statement under Super. R. Civ. P. 12(e).

         As a threshold matter, the Court will address personal jurisdiction with respect to Sackler and Mallinckrodt plc. The Court will move on to Defendants' arguments with respect to Super. R. Civ. P. 12(b)(6). Finally, the Court will review Rhodes Defendants' motion to dismiss under Super. R. Civ. P. 8 and 9, and their motion for a more definite statement under Super R. Civ. P. 12(e).

         A

         Personal Jurisdiction over Sackler and Mallinckrodt plc

         In support of his motion to dismiss under Super. R. Civ. P. 12(b)(2), Sackler submits that the Amended Complaint lacks allegations that form any basis for personal jurisdiction in Rhode Island, as Sackler is not subject to general jurisdiction in the state, and none of Plaintiff's claims against Sackler are based on his personal conduct in, or directed to, Rhode Island. Specifically, Sackler submits that despite the State's allegations, he never served on the board of Rhodes Technologies or any other Rhodes board. Contrary to the State's further allegations, Sackler argues he never assigned any patents to Rhodes. Finally, Sackler argues that the State's allegations that Sackler "directed" a campaign to market opioids "nationwide," including in Rhode Island, are insufficient for this Court to establish specific personal jurisdiction over Sackler.

         Mallinckrodt plc likewise argues that this Court lacks both general and specific personal jurisdiction over it. First, Mallinckrodt plc submits that it is not "at home" in Rhode Island and that this Court therefore cannot exercise general jurisdiction over it. More importantly, Mallinckrodt plc argues that there is no specific jurisdiction for several reasons. According to Mallinckrodt plc, the State has erroneously aggregated allegations against it with those the State makes against its subsidiaries, Mallinckrodt, LLC and SpecGx. Mallinckrodt plc explains that notwithstanding the validity of counts against Mallinckrodt, LLC and SpecGx, the State has improperly included Mallinckrodt plc in these allegations because the State has no basis for personal jurisdiction over it. While Mallinckrodt, LLC and SpecGx are incorporated in the United States, Mallinckrodt plc-their parent and corporate shareholder-is an Irish company with its principal place of business in the United Kingdom. Mallinckrodt plc asserts that it has never had any contact with Rhode Island, or with the United States more generally, and argues that stock ownership alone is not enough to satisfy the minimum contacts required to establish personal jurisdiction under Rhode Island law. Finally, Mallinckrodt plc argues that Plaintiff has not alleged that the Court should "pierce the corporate veil" to make a finding of personal jurisdiction, maintaining that this is not a proper situation for the Court to do so.

         The State objects to all arguments with respect to personal jurisdiction. In response to Sackler, the State argues that its allegations that he "personally directed deceptive marketing, promotion, and sales strategies to Rhode Island" are sufficient to establish a prima facie case for personal jurisdiction over Sackler. The State further urges the Court to consider the Gestalt factors, which the State argues support this Court's finding of personal jurisdiction over Sackler. Alternately, in the event the Court finds that the State has failed to make out a prima facie case of jurisdiction over Sackler, the State requests that the Court allow additional jurisdictional discovery.

         The State opposes Mallinckrodt plc's motion to dismiss for lack of personal jurisdiction. Specifically, the State argues that Mallinckrodt, LLC acted as an agent of Mallinckrodt plc, thereby allowing this Court to invoke personal jurisdiction upon Mallinckrodt plc based on the actions of Mallinckrodt, LLC, its subsidiary. The State notes that the two companies share the same logo, that they referred to themselves as a single company in a 2017 Annual Report, that the two companies entered into a joint agreement with the federal Drug Enforcement Administration (DEA) in 2017, and that the two companies are indistinguishable from each other in a 2014 press release. These factors, when considered as a whole, are enough to establish personal jurisdiction over Mallinckrodt plc according to the State. The State moves for jurisdictional discovery in the alternative.

         "It is well established that to withstand a defendant's Rule 12(b)(2) motion to dismiss a complaint for lack of in personam jurisdiction, a plaintiff must allege sufficient facts to make out a prima facie case of jurisdiction." Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d 1113, 1118 (R.I. 2003) (citing Ben's Marine Sales, 502 A.2d at 809). To do so, a plaintiff must satisfy the requirements of Rhode Island's long-arm statute, which states that:

"[e]very foreign corporation [and] every individual not a resident of this state . . . that shall have the necessary minimum contacts with the state of Rhode Island, shall be subject to the jurisdiction of the state of Rhode Island, and the courts of this state shall hold such foreign corporations and such nonresident individuals or their executors or administrators, and such partnerships or associations amenable to suit in Rhode Island in every case not contrary to the provisions of the constitution or laws of the United States." G.L. 1956 § 9-5-33(a); see also id.

         The Supreme Court has interpreted this statute to allow Rhode Island courts to exercise personal "jurisdiction over nonresident defendants to the fullest extent allowed by the United States Constitution." Rose v. Firstar Bank, 819 A.2d 1247, 1250 (R.I. 2003) (citing McKenney v. Kenyon Piece Dye Works, Inc., 582 A.2d 107, 108 (R.I. 1990)).

         "To ensure constitutional due process to a nonresident defendant, certain minimum contacts with the forum state are required 'such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice.'" Cerberus Partners, L.P, 836 A.2d at 1118 (quoting Kalooski v. Albert-Frankenthal AG, 770 A.2d 831, 832-33 (R.I. 2001)) (internal citation omitted). This requirement lessens the potential burden upon a defendant of litigating a case in an inconvenient forum, while maintaining the sanctity of the federal system by preventing states from exceeding their equal powers. Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). Notably, the minimum contacts analysis is fact-specific and depends on the unique circumstances of each case. Ben's Marine Sales, 502 A.2d at 810 (citing Roger Williams General Hospital v. Fall River Trust Co., 423 A.2d 1384, 1386 (R.I. 1981)). Most importantly, courts must consider "whether 'the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.'" Cerberus Partners, L.P., 836 A.2d at 1118 (quoting Bendick, 525 A.2d at 1312) (internal citation omitted).

         A plaintiff may establish personal jurisdiction by proving either general or specific personal jurisdiction. Cerberus Partners, L.P., 836 A.2d at 1118. A court may exercise general personal jurisdiction over a defendant based on domicile; in the case of an individual, residence in the forum state typically constitutes domicile for the purposes of general personal jurisdiction. In the case of a corporation, "[t]he paradigm forums in which a corporate defendant is at home are the corporation's place of incorporation and its principal place of business." 21 C.J.S. Courts § 49 (June 2019 Update). However, "[w]hen its contacts with a state are continuous, purposeful, and systematic, a nonresident defendant will subject itself to the general jurisdiction of that forum's courts with respect to all claims, regardless of whether they relate to or arise out of the nonresident's contacts with the forum." Rose, 819 A.2d at 1250 (citing International Shoe Co. v. State of Washington, Office of Unemployment Compensation & Placement, 326 U.S. 310, 318 (1945)). Alternately, "[w]hen a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum, the State is exercising 'specific jurisdiction' over the defendant." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984).

         Here, neither Sackler nor Mallinckrodt plc is at home in Rhode Island. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) ("[a] court may assert general jurisdiction over foreign [plaintiffs] . . . to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State"). Sackler does not live in this state-he is domiciled in Florida-and Mallinckrodt plc is an Irish company headquartered in the United Kingdom. Nor does the State allege that these Defendants have contacts with Rhode Island that they are essentially "at home" here. Therefore, the Court does not have general jurisdiction over these two Defendants.

         The Court turns to the question of whether it may properly exercise specific jurisdiction over Sackler and Mallinckrodt plc. With respect to Sackler, the State has alleged that he "personally directed a course of conduct aimed at deceptively marketing and selling opioids to Rhode Island providers," directed "Purdue's employment of a substantial number of sales representatives [in] Rhode Island . . . to visit doctors in their local offices for the purpose of delivering marketing messages and encouraging such doctors to write prescriptions for Purdue opioids," and "caused the dissemination of numerous deceptive marketing materials to Rhode Island providers." Considering these actions, which the Court must assume to be true for the purpose of the motion to dismiss, it is not unreasonable for Sackler to be haled into court in Rhode Island as he could reasonably anticipate being subject to suit here. See Cerberus Partners, L.P., 836 A.2d at 1118. More importantly, this Court finds that these actions constitute a purposeful availment of the privilege of conducting business in Rhode Island. Casey v. Treasure Island at Mirage, 745 A.2d 743, 744 (R.I. 2000) ("'[i]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'") (quoting Ben's Marine Sales, 502 A.2d at 810).

         Moreover, after considering the Gestalt factors, the Court finds personal jurisdiction over Sackler is reasonable. "These factors include the burden on the defendant, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining the most effective resolution of the controversy, and the shared interest of the several states in furthering fundamental substantive social policies." Cerebus Partners, L.P., 836 A.2d at 1121 (citing World-Wide Volskwagen Corp., 444 U.S. at 292). Here, Rhode Island has a strong interest in protecting its citizens from deceptive marketing practices that can lead to an overabundance of dangerous prescription medications, while the burden upon Sackler, who conducts business for Purdue in Connecticut, just one state away from Rhode Island, is not insurmountable. Accordingly, this Court finds that personal jurisdiction over Sackler is proper.

         The Court turns to the question of whether it may properly exercise jurisdiction over Mallinckrodt plc. Rather than availing itself of the advantages of doing business in Rhode Island, Mallinckrodt plc has acted through its subsidiary, creating an agency relationship and thereby subjecting itself to Rhode Island laws. See Daimler AG v. Bauman, 571 U.S. 117, 135 n.13 (2014) ("[a]gency relationships, we have recognized, may be relevant to the existence of specific jurisdiction") (emphasis in original); International Shoe Co., 326 U.S. at 318 (explaining that certain acts by a corporate agent, "because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit"). According to the State, in its 2017 Annual Report to the Securities and Exchange Commission, Mallinckrodt plc referred to itself and its subsidiaries as "us," "we" or "Mallinckrodt," generally; also in 2017, it entered into an Administrative Memorandum of Agreement and paid $35 million to settle allegations by the DEA, jointly with Mallinckrodt, LLC (Mallinckrodt plc and Mallinckrodt, LLC were collectively defined in the agreement as "Mallinckrodt"); both Mallinckrodt plc and Mallinckrodt, LLC use the exact same logo; and the companies have demonstrated a further lack of distinction in a 2014 press release, in which contact phone numbers listed as Mallinckrodt plc actually constituted the phone numbers of Mallinckrodt, LLC.

         The Court finds these allegations that Mallinckrodt, LLC acted on behalf of Mallinckrodt plc sufficient to establish personal jurisdiction over Mallinckrodt plc, for the purposes of this motion to dismiss. As the First Circuit has explained, "[e]ven if the defendants' relationship were to fall slightly outside of the confines of [the doctrine of agency], the question before us is whether a sufficient relationship exists under the Due Process Clause to permit the exercise of jurisdiction, not whether . . . [an] agency relationship between the two defendants exists." Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 56-57 (1st Cir. 2002); see also Alex & Ani LLC v. Elite Level Consulting, LLC, 31 F.Supp.3d 365, 376 (D.R.I. 2014) ("[a]n alleged tortfeasor cannot reasonably expect to escape liability merely because he engaged an agent to liaise with the victim on his behalf"). Accordingly, the State has properly pled facts sufficient to make out a prima facie case for specific personal jurisdiction over Mallinckrodt plc and to survive a 12(b)(2) motion to dismiss.

         B

         COUNT I

         Public Nuisance

         In the Amended Complaint, the State first brings a count of public nuisance against Purdue, Rhodes, Mallinckrodt, SpecGx, Teva, Cephalon, Sackler, and the Distributor Defendants. Manufacturer Defendants collectively move to dismiss the claim, arguing that it is precluded by Supreme Court precedent. Citing State v. Lead Industries Association, Inc. (Lead Industries), 951 A.2d 428 (2008), Manufacturers argue that the State fails to adequately plead the elements of public nuisance as required under Rhode Island law. Specifically, Manufacturer Defendants argue that the Amended Complaint fails to plead interference with a public right, defined in Lead Industries as an "interest common to the general public, rather than peculiar to one individual, or several." Id. at 447. Manufacturer Defendants further assert that the State has not pled the requisite element of control required to support a public nuisance claim. Id. at 449 ("a public nuisance . . . is related to conduct, performed in a location within the actor's control"). Finally, Manufacturer Defendants argue that the State has not adequately pled causation, a required element of a public nuisance claim. See id. at 450.

         Mallinckrodt, SpecGx, Teva, and Cephalon adopt the arguments set forth in the Manufacturer Defendants' motion to dismiss, while submitting individual, supplemental memoranda. Therein, Mallinckrodt, LLC and SpecGx argue that the State's claims fail because the State has not properly pled its marketing or diversion theories against them. More specifically, Mallinckrodt, LLC and SpecGx submit that the State's marketing theory improperly relies upon third party statements, and that the State fails to establish an agency relationship between Mallinckrodt, LLC, SpecGx, and these third parties. Mallinckrodt, LLC and SpecGx additionally oppose the State's diversion theory, arguing that it constitutes an improper attempt to enforce the federal Controlled Substances Act, which is the sole responsibility of the United States DEA. Teva and ...


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