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Capsule: Opioid Lawsuit Infighting and California’s Privacy Push

Sept. 30, 2019, 9:31 AM

Welcome to Capsule, where we’ll give you your weekly dose of what to watch out for in the health-care space. Each Monday our reporters get you prepped for the week’s hottest health-care topics.

Jacquie: This week Judge Dan Polster—you know, the judge who’s overseeing that massive opioid trial in Cleveland later this month—will respond to a request to pause local governments’ lawsuits in favor of giving states the first swing at the drug companies and distributors. That request was filed last week by Ohio Attorney General Dave Yost and other state attorneys general who have their own opioid lawsuits brewing.

Yost is arguing that letting the Cuyahoga and Summit County cases go forward first steps on states’ toes. If approved, Yost’s petition could force Polster to postpone other trial dates in cases brought by cities and counties. Harry Nelson told me he thinks the states have a “reasonable chance” at winning this argument and pushing back the local trial dates.

He’s a lawyer who’s been an expert witness for some of the parties suing the drug companies. He doesn’t represent any parties in the case.

Petitions like this “are generally a ‘Hail Mary’ in the ordinary case,” he says, but here “there is a compelling argument that allowing the city and county legal actions to go forward will interfere with the rights of the states.”

Ayanna: Speaking of lawsuits, Johnson & Johnson is appealing a $572 million opioid order in Oklahoma after a judge ruled the pharma giant added fuel to opioid crisis fire. J&J filed on Wednesday—which we’ll definitely keep an eye on—but the company’s legal troubles are far from over. J&J is also dealing with cases concerning surgical mesh and talc powder.

Although pharma has been a hot topic for quite some time, there also has been movement in the health privacy arena.

California, which has been leading the charge for state privacy laws, is at it again with a new ballot initiative known as the California Privacy Rights and Enforcement Act, which was submitted for the ballot Sept. 25.

Sources tell me that this provision is slated to amend the California Consumer Privacy Act, which will go into effect in January. The ballot initiative would allow Californians to have more control over the collection of their health data. The California Consumer Privacy Act currently exempts companies that handle personal health information that are covered by the Health Insurance Portability and Accountability Act of 1996 and the Golden State’s Confidentiality of Medical Information Act.

We’ll be watching when ballot measure heads to voters in 2020.

Jacquie: Meanwhile on the federal stage, Congress is out this week and next week, but lawmakers are still going to be busy. Senate Finance Chairman Chuck Grassley (R-Iowa) is going to be looking for more Republican co-sponsors for his drug bill this week and into the month, according to his staff. Grassley released the text of the bill he’s co-sponsoring with Sen. Ron Wyden (D-Ore.) last week, which you can check out here.

Grassley is positioning his bill as a more moderate alternative to Speaker Nancy Pelosi’s (D-Calif.) drug pricing bill.

What Else We’re Watching

Our colleague Lydia Wheeler reminds us we’re still waiting to hear back on the Affordable Care Act’s constitutionality in the Fifth Circuit case Texas v Azar. That ruling “could come anytime,” she says.

Another thing to keep an eye out for is Jacquie’s bounce back emails. She’ll be out of the office for much of October. Ayanna’s inbox will be open for any tips though so be sure to send them her way.

To contact the reporters on this story: Jacquie Lee in Washington at jlee1@bloomberglaw.com; Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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