Utah Court Grants Dismissal to Gordon & Rees Physician Client in Opioid Litigation

April 2021

Gordon Rees Scully Mansukhani represents three physicians in the prescription opioid litigation who were named not at all for prescribing opioids which caused harm but rather as “Key Opinion Leaders” related to their writings, speech, and medical opinions in hundreds of cases across the country, including those in the MDL in Cleveland, Ohio.  Since the flood of opioid litigation began in late 2017, the Gordon & Rees team has won several motions to dismiss around the country and secured hundreds of stipulated voluntary dismissals in favor of its physician clients.

New England-based partners John Robinson and Steven Zakrzewski, along with Hartford associate Kelcie Reid have led a team of lawyers around the country (all from Gordon & Rees and its 50 state platform) in the defense of these cases.  The most recent Gordon & Rees victory came down on February 16, 2021 in the Summit County, Utah District Court. There, after oral argument handled by John Robinson, the court dismissed statutory and common law public nuisance, fraud, and conspiracy claims brought by Salt Lake County against Dr. Lynn Webster of Salt Lake City, one of Gordon & Rees’ three physician clients. The County’s complaint alleged, among other things, that the physician’s speech—in the form of medical journal articles, continuing medical education presentations, and other publications—was used by the opioid industry to proliferate the industry’s misrepresentations and support its efforts to expand the opioid market.

After extensive briefing and oral argument by an inter-office team including Robinson, Zakrzewski, Reid, partner Mark Nickel and associate David Garner of the firm’s Salt Lake City office, and Nicholas Varney of the firm’s Hartford office, the court dismissed all causes of action.  In its decision, the court held that the County failed to show that the physician’s speech constituted a crime against the state’s order and economy, or an unreasonable interference with a right common to the general public, that could be abated through either a statutory or common law public nuisance claim. The court dismissed the public nuisance claims with prejudice. The court likewise found that the County’s complaint failed to set forth a factual basis to support its contention that the physician’s speech was fraudulent, and that the County failed to allege any facts supporting a claim for civil conspiracy.  In other words, the County did not plead facts showing that the physician agreed to partake in a concerted action with opioid manufacturers to increase prescription sales and circumvent diversion controls.