Re: PRN's WA State Class Action Summary
- From: "LoriB.o.B." <banjobabe@xxxxxxxxxxx>
- Date: Sat, 7 Mar 2009 13:39:11 -0800 (PST)
Well said (((Puddin')))! I'm in total agreement w/ya & 2nd it! Like
your sig line here too!
I can hardly wait for more news re: Wa state's reply!! Meanwhile, the
damned idjits here "running'crap like the "guidelines" are prob. still
in shock! Hope so!
Kindly,
LoriBoB
On Feb 27, 12:20 pm, Puddin' Man <puddingDOT...@xxxxxxxxx> wrote:
Hello Tami,
I've long felt that the best legal defenses against the sensationalism and
demonization of opiod therapies lie in challenges based on certain elements of
existing law.
Yours is the only serious legal challenge that I am aware of.
The work that you, Siobian, and the PRN legal staff are doing is potentially
very important to all chronic pain patients in the US, and is very much
appreciated.
Y'all fight "The Good Fight", and I salute you. Keep us posted re any/all new
developments.
Much Thanks,
Puddin'
On Thu, 26 Feb 2009 17:14:16 -0800 (PST), tamara.str...@xxxxxxxxx wrote:
"We filed our mammoth first complaint in June; we essentially gave
them “everything but the kitchen sink.” Then, to top it off, we gave
them the entire case in briefed format for the state tort filing in
July!
The Defendants normally get 20 DAYS to answer a complaint. In light
of the enormity of the effort, and wanting to give them plenty of time
to digest it, I offered up a VERY long extension for their answer
until September.
Lo and behold, in September they filed a motion to dismiss the ENTIRE
complaint for “failure to state a claim upon which relief can be
granted.” They argued that the claims were so confusing they couldn’t
understand them, and it was obvious they barely tried.
The judge denied their motion, but ordered us to amend our complaint.
The obvious message is “keep it short and simple.” Well, this isn’t
about short and simple, but I did the best I could and refiled an
amended complaint on November 3. The original order gave the
defendants the right to renew their motion to dismiss (but if they had
done that, they would have had to state GROUNDS for dismissal).
Following the amendment, Instead of filing a motion to dismiss, the
defendant chose to ANSWER the complaint. Now, the rules state that
they are supposed to provide a MEANINGFUL response to each and every
allegation in our complaint in their answer. The other critical thing
about an answer is it is the ONLY opportunity defendants have to
assert what are called “affirmative defenses.” If they aren’t raised
in the answer they are lost forever.
Here is how “pleadings” are supposed to work: the plaintiff states the
elements of all of their claims in the “complaint.” The defendant
admits or denies each one, one at a time, paragraph by paragraph in
the “answer.” What they agree on gets set aside, and trial is then
limited to factual issues in dispute. After the complaint and answer
are filed, a technical analysis of the two is done. The lawyer
determines which issues are issues of law, and which ones are issues
of fact. For disputed issues of fact, a discovery plan is created to
prepare for trial. For issues of law, these are presented to the
court during motions practice for ruling so that there can be a
“narrowing” of issues for trial. When discovery is complete –
assuming no settlement – then a trial is had on the issues of fact
that are in dispute and a jury decides those (unless it is a bench
trial before the judge alone).
Given that their answer was completely insufficient, we moved to
strike it outright. We have proposed as alternative relief that the
court simply order a more definite statement. Reflexively, the state
opposed our motion with the statement that “a more definite statement
is inappropriate for an answer lacking counterclaims.” While this is
technically true, we offered the alternative as an effort to help THEM
because if their answer was struck it would pose an enormous legal bar
to THEM. But, in light of their own opposition, in our reply, we
withdrew the request for the alternative relief in accordance with
their OWN desire to limit remedies available to THEM and instead asked
the court to simply strike it outright. We also asked the court to
strike EVERY ONE of the affirmative defenses they proposed.
The briefing on our motion to strike is complete, and it is now ready
for a ruling by the court. This could be enormously important for us
either way.
In the meantime, I have also filed a motion for partial summary
judgment on the Dosing Guidelines. And, tomorrow, we will file an
additional motion for partial summary judgment on the MQAC Licensing
Regime. Here is the summary of those: a partial summary judgment
motion is a request for the court to recognize that one or more of the
claims in the case can be decided without any factual disputes – that
there are no “genuine issues of material fact” for which a trial needs
to be held. In other words, one party can win simply on the law.
Our first motion for partial summary judgment asked the court to
declare that the Dosing Guidelines constitute a state conflict with
pharmaceutical drug labels. In other words, the claim is that if the
Dosing Guidelines had been offered by a manufacturer instead of a
state, they would have been actionable as violations of the drug
labels for opioids. However, since they were drafted by a state as a
form of “law” they violate the Supremacy clause which grants the FDA
exclusive jurisdiction to label approved pharmaceuticals. If the
Washington officials think that the drug labels need to limit dosing
in an arbitrary way, they can take it up with the FDA instead of
publishing spurious “guidelines” for Washington officials. The state,
again reflexively and without thinking, tried to defend the Dosing
Guidelines by writing about “opioid deaths.” Gee, sounds like DRUG
SAFETY doesn’t it? Impeached by their own brief! A hearing before
the judge on that motion is scheduled for February 10 in the tri-
cities in Washington. I am VERY hopeful. If we win, the Dosing
Guidelines will be struck down.
The second partial summary judgment motion should really cause the
state’s eyes to pop out! The state challenged the plaintiffs in the
closing paragraph of the opposition to the motion to strike to produce
evidence of an “outright prohibition” on opioid prescribing in
Washington. They categorically denied such a thing existed. Well,
normally I don’t “bite” where I am told to, but in this the temptation
was just too great. I filed a partial summary judgment motion doing
exactly that: this one demonstrates that a decision of the Washington
medical licensing authority in May 2008 [about a month before we filed
our case] issued an adjudicatory decision in which they deprived a
physician of his license and in doing so created the following RULE of
medical practice: NO PHYSICIAN CAN PRESCRIBE OPIOIDS FOR ANY CHRONIC
CONDITION – PERIOD. Failure to abide by the limitation threatens the
license. Well, this was so bad it is legally fabulous. This
constitutes what is known as “per se” or “facial” discrimination..
Under the law of the Ninth Circuit U.S. Court [that is our Circuit]
such a categorical exclusion gets you an unequivocal ADA violation.
Not only that, it entitles a plaintiff to damages as a matter of law
unless there is an affirmative defense. And, the defendants asserted
NO statutory affirmative defenses against our ADA claims! So, what
that means is that, if the court grants our motion, then as a matter
of law, we know RIGHT NOW that the plaintiffs will be entitled to
DAMAGES upon proof of just two things: 1) that they are “disabled”
within the definition of the law and 2) that they can prove they were
harmed by the MQAC in some manner. Good luck with that, eh?
In the meantime, I’m working on a number of other “offensive”
maneuvers as well and also working with the criminal teams on various
other matters. This could shape up to be a banner year for PRN and
chronic pain patients.'
Laura Cooper, Esq.
Pain Relief Network
Tami Strand
Pain Relief Network
"Law Without Equity Is No Law At All. It Is A Form Of Jungle Rule."
.
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