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COUNTY OF FALLS, IN THE DISTRCT COURT
VS. 62 JUDICIAL DISTRICT
PURDUE PHARMA L.P., ET AL.,
FALLS COUNTY, TEXAS
IN THE DISTRICT COURT
IN RE: TEXAS OPIOID 152ND JUDICIAL DISTRICT
HARRIS COUNTY, TEXAS
NC. AND CARDINAL HEALTH 110, LLC’S
ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFF’S FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Cardinal Health, Inc. and Cardinal Health 110, LLC (collectively,
“Defendants”) and file their Original Answer and Affirmative Defenses to Plaintiff's First
Amended Petition and in suppor
GENERAL DENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants assert a general
denial, deny each and every allegation made by Plaintiff County of Falls (“Plaintiff’ or “the
County’), and demand strict proof thereof.
SPECIAL DENIAL
Pursuant to Rule 54 of the Texas Rules of Civil Procedure, Defendants specifically deny
that Plaintiff properly pled that all conditions precedent to Plaintiff's claims have been performed
or have occurred, and deny that such conditions precedent have been met in their entirety.
lll.
AFFIRMATIVE DEFENSES
Defendants assert the following defenses to Plaintiff's First Amended Petition (the
“Petition”). Defendants do not admit or acknowledge that they bear the burden of proof and/or
burden of persuasion with respect to any such defense. All of the following defenses are pled in
the alternative and none constitutes an admission that Defendants are liable to Plaintiff, that
Plaintiff has or will be injured or damaged in any way, or that Plaintiff is entitled to any relief
whatsoever. Defendants reserve the right to (i) rely upon any other applicable defenses set forth
in any Answer of any other defendant in this Action, (ii) rely upon any other defenses that may
become apparent during fact or expert discovery in this matter, and (iii) to amend this Answer to
ead, if such be necessary, and pleading in the alternative, that
the Petition fails to state facts sufficient to constitute a claim upon which an award of actual
damages, compensatory damages, restitutionary damages, punitive damages, or other relief may
ead, if such be necessary, and pleading in the alternative, that
the Petition, and each alleged claim therein, is barred, in whole or in part, by the applicable statute
of limitations.
ead, if such be necessary, and pleading in the alternative, that
the Petition, and each alleged claim therein, is barred, in whole or in part, by the applicable statute
ead, if such be necessary, and pleading in the alternative, that
Plaintiffs claims for relief
ead, if such be necessary, and pleading in the alternative, that
venue may be improper and/or i
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred or limited for lack of standing.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff lacks capacity to bring its claims, including claims indirectly maintained on behalf of its
citizens and claims brought as
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred because Plaintiff is not the real
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are not rip
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims and damages are barred or limited, in whole or in part, by common law, statutory,
and state constitutional constraints on the exercise of police powers by a local government.
ead, if such be necessary, and pleading in the alternative, that
Plaintiffs claims are barred, in whole or in part, by the political question and separation of powers
doctrine and because its claims implicate issues of statewide importance that are reserved for state
ead, if such be necessary, and pleading in the alternative, that
Plaintiff may be barred by the doctrine of unclean hands from all forms of relief sought in the
Petition.
ead, if such be necessary, and pleading in the alternative, that
ministrative remedies.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff may be barred by the doctrines of estoppel, quasi-estoppel, equitable estoppel, and/or
waiver from all forms ofr
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claim may be barred by the doctrines of res judicata and collateral estoppel from all
forms of relief sought in the Petition.
ead, if such be necessary, and pleading in the alternative, that
Plaintiffs claims are barred or limited by the terms and effect of any applicable Consent Judgment,
including by operation of the doctrines of res judicata and collateral estoppel, failure to fulfil
conditions precedent, failure to provide requisite notice, payment, accord and satisfaction, and
compromise and settlement.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff has failed to join all necessary parties, including without limitation health care providers,
prescribers, patients, and other third parties whom Plaintiff alleges engaged in the unauthorized or
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims against Defendants do not arise out of the same transaction or occurrences as its
claims against other defendants
ead, if such be necessary, and pleading in the alternative, that
to the extent that Plaintiffs claims relate to Defendants’ alleged advertising, public statements,
lobbying, or other activities protected by the First Amendment to the Constitution of the United
State or by the Constitution of the State of Texas or that of a e laws may apply,
such claims are barred.
ead, if such be necessary, and pleading in the alternative, that
Plaintiffs claims are barred to the extent that they violate the Due Process or Ex Post Facto clauses
ead, if such be necessary, and pleading in the alternative, that
Defendants’ right under the Due Process Clause of the United States Constitution and applicable
other arrangement that might distort a
government attorney’s duty to pursue justice rather than his or her personal interests, financial or
otherwise, in the context of a civil enforcement proceeding, including by Plaintiff's use of a
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred, in whole or in part, to the extent that they violate the Dormant
Commerce Clause of the United States Constitution.
ead, if such be necessary, and pleading in the alternative, that
they deny all types of causation including without limitation cause in fact, proximate cause and
claims asserted against De
ead, if such be necessary, and pleading in the alternative, that
the Petition, and each alleged claim contained therein, is barred, in whole or in part, because
Defendants did not proximately cause the damages complained of, and because the acts of other
persons (including individuals engaged in the illegal distribution or use of opioids without a proper
prescription) intervened between Defendants’ acts and Plaintiff's harms. Defendants had no legal
duty to protect Plaintiff from the intentional criminal acts of
ead, if such be necessary, and pleading in the alternative, that
the injuries and damages claimed by Plaintiff resulted from an intervening or superseding cause
and/or causes, and any act or omission on the part of Defendants was not the proximate and/or
competent producing cause of such alleged injuries and damages.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's injuries and damage due to illicit use or abuse of the medications at issue
on the part of the medication users
ead, if such be necessary, and pleading in the alternative, that
any injuries and/or damages sustained by Plaintiff may have been caused or contributed to by the
negligence or actual conduct of Plaintiff and/or other persons, firms, corporation, or entities over
whom Defendants had no control or
ead, if such be necessary, and pleading in the alternative, that
any injuries or damages alleged in the Petition may have been caused by unforeseeable and
uncontrollable circumstances and/or other forces over which Defendants had no control and for
e-existing me
ead, if such be necessary, and pleading in the alternative, that
any and all damages alleged by Plaintiff were caused by misuse of the products involved, failure
to use the products properly, and/or alteration of, or criminal misuse or abuse of the product by
third parties over whom Defendants had no control and for whom Defendants are not responsible.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred to the extent they are based on alleged criminal acts of third parties,
which Defendants have no duty to control or prevent and which operate as superseding causes
ead, if such be necessary, and pleading in the alternative, that
damage as a result of any act
ead, if such be necessary, and pleading in the alternative, that
the derivative injury r ss doctrine bar Plaintiff from recovering payments that
Plaintiff allegedly made on behalf of residents to reimburse any expenses for health care,
pharmaceutical care, and other public services.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred to the extent that Defendants have valid defenses that bar recovery by
ead, if such be necessary, and pleading in the alternative, that
Plaintiffs claims are subject to all defenses that could be asserted if Plaintiff's claims were
properly made by individuals on whose behalf or for whose alleged damages Plaintiff seeks to
ead, if such be necessary, and pleading in the alternative, that
Plaintiff has failed to comply with the requirement that it must identify each patient in whose
claim(s) it has a subrogation i
ead, if such be necessary, and pleading in the alternative, that
Plaintiff has failed to plead that it reimbursed any prescriptions for any opioid distributed by
Defendants that harmed patients and should not have been written, or that Defendants’ allegedly
improper conduct caused any health care provider to write any ineffective or harmful opioid
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's alleged damages
ead, if such be necessary, and pleading in the alternative, that
any recovery by Plaintiff may be barred or reduced, in whole or in part, by the principles of
comparative or contributory fault and proportionate responsibility, pursuant to Chapters 32 and 33
emedies Code and at common law.
ead, if such be necessary, and pleading in the alternative, that
any recovery against Defendants is barred or limited under the principles of assumption of the risk
and informed consent.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's damages, if any, were caused by the active, direct, and proximate negligence or actual
conduct of entities or persons other than Defendants, and in the event that Defendants are found to
be liable to Plaintiff, Defendants will be entitled to indemnification, contribution, and/or
apportionment.
Defendants further assert, if such be necessary, and pleading in the alternative, their
right to a proportionate reduction of any damages found against them, based on the product,
negligence, or other conduct of any settling tortfeasor and/or responsible third party and/or
ead, if such be necessary, and pleading in the alternative, that
a specific percentage of the tortious conduct that proximately caused the injury or loss to person
or property is attributable to (i) Plaintiff, (ii) other parties from whom Plaintiff seeks recovery, and
(ili) persons from whom Plaintiff does not seek recovery in this action, including, but not limited
to, prescribing practitioners, non-party pharmacies and pharmacists, individuals and entities
distribution and sale of illegal opioids, individuals involved in procuring diverted prescription
opioids and/or illegal drugs, delivery services, federal, state, and local government entities, and
health insurers and pharmacy benefit managers.
ead, if such be necessary, and pleading in the alternative, that
any verdict or judgment that might be recovered by Plaintiff must be reduced by those amounts
that have already indemnified or with reasonable certainty will indemnify Plaintiff in whole or in
part for any past or future claimed economic loss from any collateral source or any other applicable
ead, if such be necessary, and pleading in the alternative, that
if any Defendant is found liable for Plaintiff's alleged injuries and losses (which liability is
specifically denied) and the percentage of responsibility attributed to that Defendant with respect
to a cause of action is not greater than 50 percent, Defendant would be liable to Plaintiff only for
the percentage of the damages found by the trier of fact equal to Defendant’s percentage of
pect to the economic loss or other harm for which damages are allowed.
ead, if such be necessary, and pleading in the alternative, that
any and all damages claimed by Plaintiff, whether actual, compensatory, punitive, attorneys’ fees,
plicable statutory exclusions, caps, and limitations.
ead, if such be necessary, and pleading in the alternative, that
any damages that Plaintiff may recover against Defendants must be reduced to the extent that
damages for alleged injuries or expenses related to the same user(s)
of the subject prescription medications, or damages recovered or recoverable by other actual or
potential plaintiffs. Any damages that Plaintiff may recover against Defendants must be reduced
to the extent they unjustly enrich Plaintiff.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims fail to the extent they are based on a theory of market share liability, which is
not a recognized means for recovering damages under Texas law.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred or limited by the economic loss r
ead, if such be necessary, and pleading in the alternative, that
Plaintiff is barred, in whole or in part, from r incurred in providi
or municipal cost recovery doct
ead, if such be necessary, and pleading in the alternative, that
Plaintiff may have failed or refused to exercise reasonable care and diligence to avoid loss and
minimize damages and, therefore, may not recover for losses that could have been prevented by
reasonable efforts on its part, or by expenditures which might reasonably have been made.
Recovery, if any, should therefor ilure to mitigate damages, if any.
ead, if such be necessary, and pleading in the alternative, that
to the extent Plaintiff attempts to seek equitable relief, Plaintiff
is not entitled to such relief because
Plaintiff has an adequate remedy at law.
ead, if such be necessary, and pleading in the alternative, that
the claims asserted in the Petition are barred, in whole or in part, because federal agencies have
exclusive or primary jurisdiction over the matters asserted in the Petition.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are preempted by federal law, including (without limitation) the federal
Controlled Substances Act and the Food, Drug, and Cosmetic Act
ead, if such be necessary, and pleading in the alternative, that
the conduct of Defendants conformed with the FDCA and the requirements of the FDA, and the
activities of Defendants alleged in the Petition conformed with all state and federal statutes,
regulations, and industry standards based on the state of knowledge at the relevant time(s) alleged
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred, in whole or in part, by conflict preemption as set forth in the United
States Supreme Court’s decisions in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) and Mutual
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are preempted insofar as they conflict with Congress’s purposes and objectives
in enacting relevant federal legislation and authorizing regulations, including the Hatch-Waxman
Amendments to the FDCA and implementing regulations.
ead, if such be necessary, and pleading in the alternative, that
to the extent Plaintiff claims that Defendants misled or defrauded FDA or any other federal agency
with respect to the Manufacturer Defendants’ disclosure of information related to the safety of
their medications at issue, such claims are preempted by federal law. See Buckman v. Plaintiffs’
ead, if such be necessary, and pleading in the alternative, that
to the extent Plaintiff claims that Defendants misled or defrauded DEA or any federal agency by
failing to report suspicious pharmacy orders or other information, such claims are preempted by
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred, in whole or in part, by the deference that common law accords
discretionary actions by the FDA under the FDCA and discretionary actions by the DEA under the
Controlled Substances Act.
ead, if such be necessary, and pleading in the alternative, that
if Plaintiff incurred the damages alleged, which is expressly denied, Defendants are not liable for
damages because the methods, standards, or techniques of designing, manufacturing, labeling, and
distributing of the prescription medications at issue complied with and were in conformity with
the laws and regulations of the Controlled Substances Act, the FDCA, and the generally recognized
state of the art in the industry at the time the product was designed, manufactured, labeled, and
ead, if such be necessary, and pleading in the alternative, that
pursuant to Texas Civil Practice & Remedies Code § 82.007, Defendants are not liable with respect
to any allegations involving failure to provide adequate warnings or information because all
warnings or information that accompanied the allegedly distributed products were approved by the
United States Food & Drug Admini ral Food, Drug,
and Cosmetic Act (21 U.S.C. Section 301 et seq.), as amended, or Section 351, Public Health
Service Act (42 U.S.C. Section 262), as amended, or the warnings and information provided were
those stated in monographs developed by the United States Food & Drug Administration for
pharmaceutical products that may be distributed without an appr
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims and alleged damages are barred mediary doctrine.
ead, if such be necessary, and pleading in the alternative, that
ny statutory or common law du
ead, if such be necessary, and pleading in the alternative, that
Defendants appropriately, completely, and fully performed and discharged any and all obligations
matters alleged in the Petition.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred, in whole or in part, because Defendants complied at all relevant times
ead, if such be necessary, and pleading in the alternative, that
to the extent that Plaintiff relies on letters or other informal guidance from the DEA to establish
Defendants’ regulatory duties, such informal guidance cannot enlarge Defendants’ regulatory
duties in the absence of compliance by DEA with the requirements of the Administrative
Procedure Act, 5 U.S.C. § 551
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are barred t lleged violations of industry customs
because purported industry customs do not create legal duties o
ead, if such be necessary, and pleading in the alternative, that
the claims asserted in the Petition are barred, in whole or in part, by the Restatement (Second) of
d Restatement (Third) of Tort
ead, if such be necessary, and pleading in the alternative, that
to the extent that Plaintiff is alleging fraud, fraudulent concealment, or similar conduct, Plaintiff
ead, if such be necessary, and pleading in the alternative, that
Plaintiff fails to plead any actionable misrepresentation or omission made by or attributable to
ead, if such be necessary, and pleading in the alternative, that
no conduct of Defendants was misleading, unfair, or deceptive.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims may be barred, in whole or in part, because neither the users nor their prescribers
of the medications allegedly distributed by Defendants, nor Plaintiff itself, relied to their detriment
upon any statement by Defendants in determining to use the medi
ead, if such be necessary, and pleading in the alternative, that
Defendants are not liable for any statements in the Manufacturer Defendants’ branded or
unbranded materials.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's nuisance claims are barred to the extent that it lacks the statutory authority to bring a
nuisance claim under Texas law or its own applicable county or municipal codes or regulations.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claim of public nuisance is barred or limited becau
interference with real property ving the use of an
otherwise legal product does not involve a public right against the distributor sufficient to state a
claim for public nuisance; the alleged public nuisance would have impermissible extraterritorial
reach; and the alleged conduct of Defendants is too remote from the alleged injury as a matter of
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claim for unjust enrichment is barred or limited because Defendants did not receive and
retain any alleged benefit from Plaintiff.
ead, if such be necessary, and pleading in the alternative, that
Plaintiffs claims are barred, reduced, and/or limited pursuant to the applicable Texas statutory and
common law regarding limitations nd setoffs.
ead, if such be necessary, and pleading in the alternative, that
if Defendants are found liable to Plaintiff in any amount, Defendants are entitled to a credit or set-
off for any and all sums Plaintiff has received in the way of any and all settlements.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's Petition is barred, in whole or in part, by the doctrines of acquiescence, settlement, or
release.
ead, if such be necessary, and pleading in the alternative, that
Defendants’ liability, if any, will not result from their conduct but is solely the result of an
obligation imposed by law, and thus Defendants are entitled to complete indemnity, express or
implied, by other parties.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims for punitive or exemplary damages or other civil penalties are barred or reduced
by applicable law or statute or, in the alternative, are unconstitutional insofar as they violate the
due process protections afforded by the United States Constitution, the excessive fines clause of
the Eighth Amendment of the United States Constitution, the Full Faith and Credit Clause of the
United States Constitution, and applicable provisions of the Constitution of this State or that of
any other state whose laws may apply. Any law, statute or other authority purporting to permit the
recovery of punitive damages or civil penalties in this case is unconstitutional, facially and as
applied, to the extent that, without limitation, it: (1) lacks constitutionally sufficient standards to
guide and restrain the jury’s discretion in determining whether to award punitive damages or civil
penalties and/or the amount, if any; (2) is void for vagueness in that it fails to provide adequate
advance notice as to what conduct will result in punitive damages or civil penalties; (3)
unconstitutionally may permit recovery of punitive damages or civil penalties based on harms to
third parties, out-of-state conduct, conduct that complied with applicable law, or conduct that was
not directed, or did not proximately cause harm, to Plaintiff; (4) unconstitutionally may permit
recovery of punitive damages or civil penalties in an amount that is not both reasonable and
proportionate to the amount of harm, if any, to Plaintiff and to the amount of compensatory
damages, if any; (5) unconstitutionally may permit jury consideration of net worth or other
financial information relating to Defendants; (6) lacks constitutionally sufficient standards to be
applied by the trial court in post-verdict review of any award of punitive damages or civil penalties;
(7) lacks constitutionally sufficient standards for appellate review of any award of punitive
damages or civil penalties; (8) would unconstitutionally impose a penalty, criminal in nature,
without according to Defendants the same procedural protections that are accorded to criminal
defendants under the constitutions of the United States, this S
may apply; and (9) otherwise fails to satisfy Supreme Court precedent, including, without
limitation, Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991); TXO Production Corp. v.
, 509 U.S. 443 (1993); BMW of N. Am. v. Gore, 517 U.S. 559 (1996);
Farm Ins. Co. v. Campbell, 538 U.S. 408 (2003); and Philip Morris USA v. Williams, 549 U.S.
ssert all of the limitations and requirements cont
41 of the Texas Civil Practice & Remedies Code.
ead, if such be necessary, and pleading in the alternative, that
to the extent that Plaintiff seeks punitive, exemplary, or aggravated damages, any such damages
are barred because the product at issue, and its labeling, were subject to and received pre-market
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claim for punitive or exemplary damages is barred for one or more of the following
reasons: (a) Plaintiff cannot prove by clear and convincing evidence that Defendants were grossly
negligent, and (b) Defendants have neither acted nor failed to act in any manner which entitles
e or exemplary damages.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff cannot obtain relief on its claims based on actions undertaken by Defendants of which
of all material facts.
ead, if such be necessary, and pleading in the alternative, that
Defendants are entitled to, and claims the benefit of, all defenses and presumptions set forth in or
arising from any rule of law or statute of Texas or any other state whose substantive law might
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's claims are ba
Defendants further assert, if such be necessary, and pleading in the alternative, all
applicable defenses under Texas Rule of Civil Procedure 94, as investigation and discovery
proceeds.
ead, if such be necessary, and pleading in the alternative, that
to the extent they are not otherwise incorporated herein, Defendants incorporate as a defense the
defenses and arguments raised in any Rule 91a motions to dismiss of the Defendants, Manufacturer
this case.
ead, if such be necessary, and pleading in the alternative, that
there is no justiciable issue. Plaintiff has failed to assert claims over which the Court has the power
to exercise its authority.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff has no authority or right to bring such claims on behalf of itself or the citizens of the
ead, if such be necessary, and pleading in the alternative, that
the Petition fails in whole or in part because there is no genuine issue of material fact and
udgment as a matter of law.
ead, if such be necessary, and pleading in the alternative, that
not legally foreseeable.
ead, if such be necessary, and pleading in the alternative, that
there is no cause of action in the Texas Controlled Substances Act or its legislative rules against
ead, if such be necessary, and pleading in the alternative, that
Plaintiff lacks the authority to file suit to collect penalties or fines based on alleged violations of
the Texas Controlled Substances Act.
ead, if such be necessary, and pleading in the alternative, that
Defendants are not liable to Plaintiff because Defendants are non-manufacturing sellers under
Texas Civil Practice & Remedies Code § 82.003.
ead, if such be necessary, and pleading in the alternative, that
under Texas Civil Practice & Remedies Code § 82.008, Defendants are not liable for any injury
allegedly caused to Plaintiff by the products in question because all formulations, labeling, and
design of the products complied with mandatory safety standards or regulations adopted and
promulgated by the federal government, or an agency of the federal government, that were
applicable to the products at the time of manufacture and that governed the product risk that
allegedly caused the purported harm.
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's alleged damages were caused by the intentional and criminal activities of unidentified
persons, including numerous unknown persons who abused, misused, wrongfully obtained,
illegally trafficked, and/or sold prescription opioids in violation of criminal law. The criminal acts
of these unknown persons caused the alleged loss or injury that is the subject of this lawsuit. As
required by § 33.004(k) of the Texas Civil Practices & Remedies Code, Defendants will refer to
these unknown criminals as the “Does” until their identities are known because this case and
ead, if such be necessary, and pleading in the alternative, that
Plaintiff's retention of private special counsel violates Texas law and the Due Process Clause
because the County does not have a population of more than 1.25 million. Tex. Loc. Gov’t
Code § 89.001 (authorizing retention of special counsel to represent the county in a suit brought
by or against county only where county’s population is greater than 1.25 million). Counties, like
the County, with populations below 1.25 million lack statutory authority to retain private counsel.
ead, if such be necessary, and pleading in the alternative, that
Plaintiffs civil conspiracy claim fails because civil conspiracy is a derivative tort and Defendants
Defendants adopt by reference any additional applicable defense
defendants not otherwise pled herein and reserve the right to amend this answer to assert any such
Defendants hereby give notice that they may rely upon any other applicable
affirmative defense(s) of which they may become aware during discovery in this Action and
reserve the right to amend this
DEMAND FOR BIFURCATED TRIAL
Pursuant to Texas Rule of Civil Procedure 174(b), if Plaintiff is permitted to proceed to
trial upon any claims for punitive or exemplary damages, Defendants move that such claims, if
any, be bifurcated from the remaining issues.
DEMAND FOR JURY TRIAL
Defendants hereby demand a trial b
WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon the trial or
hearing of this matter, Plaintiff recovers nothing against Defendants, that the Petition be dismissed,
that costs of court be assessed against Plaintiff, and for such other and further relief, both general
ly entitled.
Respectfully submitted,
By:_/s/ Matt R. Raley
Michael W. Mengis,
mmengis@bakerlaw.com
State Bar No. 13941040
Matt R. Raley
mraley@bakerlaw.com
State Bar No. 24051224
BAKER & HOSTETLER LLP
811 Main Street, Suite 1100
Houston, Texas 77002
Phone: 713.751.1600
Fax: 713.751.1717
emainigi@wc.com
Ashley W. Hardin
Williams & Connolly LLP
725 Twelfth Street N.W.
Facsimile: (202) 434-5029
denotes national counsel who will seek
CARDINAL HEALTH INC. AND
CERTIFICATE OF SERVICE
Pursuant to the provisions of the Texas Rules of Civil Procedure, I certify that a copy of
the foregoing was served on all known counsel of record electronically on this the 25th day of
/s/ Matt R. Raley
Matt R. Raley
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COUNTY OF FALLS, IN THE DISTRCT COURT VS. 62 JUDICIAL DISTRICT PURDUE PHARMA L.P., ET AL., FALLS COUNTY, TEXAS IN THE DISTRICT COURT IN RE: TEXAS OPIOID 152ND JUDICIAL DISTRICT HARRIS COUNTY, TEXAS NC. AND CARDINAL HEALTH 110, LLC’S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S FIRST AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Cardinal Health, Inc. and Cardinal Health 110, LLC (collectively, “Defendants”) and file their Original Answer and Affirmative Defenses to Plaintiff's First Amended Petition and in suppor GENERAL DENIAL Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants assert a general denial, deny each and every allegation made by Plaintiff County of Falls (“Plaintiff’ or “the County’), and demand strict proof thereof. SPECIAL DENIAL Pursuant to Rule 54 of the Texas Rules of Civil Procedure, Defendants specifically deny that Plaintiff properly pled that all conditions precedent to Plaintiff's claims have been performed or have occurred, and deny that such conditions precedent have been met in their entirety. lll. AFFIRMATIVE DEFENSES Defendants assert the following defenses to Plaintiff's First Amended Petition (the “Petition”). Defendants do not admit or acknowledge that they bear the burden of proof and/or burden of persuasion with respect to any such defense. All of the following defenses are pled in the alternative and none constitutes an admission that Defendants are liable to Plaintiff, that Plaintiff has or will be injured or damaged in any way, or that Plaintiff is entitled to any relief whatsoever. Defendants reserve the right to (i) rely upon any other applicable defenses set forth in any Answer of any other defendant in this Action, (ii) rely upon any other defenses that may become apparent during fact or expert discovery in this matter, and (iii) to amend this Answer to ead, if such be necessary, and pleading in the alternative, that the Petition fails to state facts sufficient to constitute a claim upon which an award of actual damages, compensatory damages, restitutionary damages, punitive damages, or other relief may ead, if such be necessary, and pleading in the alternative, that the Petition, and each alleged claim therein, is barred, in whole or in part, by the applicable statute of limitations. ead, if such be necessary, and pleading in the alternative, that the Petition, and each alleged claim therein, is barred, in whole or in part, by the applicable statute ead, if such be necessary, and pleading in the alternative, that Plaintiffs claims for relief ead, if such be necessary, and pleading in the alternative, that venue may be improper and/or i ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred or limited for lack of standing. ead, if such be necessary, and pleading in the alternative, that Plaintiff lacks capacity to bring its claims, including claims indirectly maintained on behalf of its citizens and claims brought as ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred because Plaintiff is not the real ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are not rip ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims and damages are barred or limited, in whole or in part, by common law, statutory, and state constitutional constraints on the exercise of police powers by a local government. ead, if such be necessary, and pleading in the alternative, that Plaintiffs claims are barred, in whole or in part, by the political question and separation of powers doctrine and because its claims implicate issues of statewide importance that are reserved for state ead, if such be necessary, and pleading in the alternative, that Plaintiff may be barred by the doctrine of unclean hands from all forms of relief sought in the Petition. ead, if such be necessary, and pleading in the alternative, that ministrative remedies. ead, if such be necessary, and pleading in the alternative, that Plaintiff may be barred by the doctrines of estoppel, quasi-estoppel, equitable estoppel, and/or waiver from all forms ofr ead, if such be necessary, and pleading in the alternative, that Plaintiff's claim may be barred by the doctrines of res judicata and collateral estoppel from all forms of relief sought in the Petition. ead, if such be necessary, and pleading in the alternative, that Plaintiffs claims are barred or limited by the terms and effect of any applicable Consent Judgment, including by operation of the doctrines of res judicata and collateral estoppel, failure to fulfil conditions precedent, failure to provide requisite notice, payment, accord and satisfaction, and compromise and settlement. ead, if such be necessary, and pleading in the alternative, that Plaintiff has failed to join all necessary parties, including without limitation health care providers, prescribers, patients, and other third parties whom Plaintiff alleges engaged in the unauthorized or ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims against Defendants do not arise out of the same transaction or occurrences as its claims against other defendants ead, if such be necessary, and pleading in the alternative, that to the extent that Plaintiffs claims relate to Defendants’ alleged advertising, public statements, lobbying, or other activities protected by the First Amendment to the Constitution of the United State or by the Constitution of the State of Texas or that of a e laws may apply, such claims are barred. ead, if such be necessary, and pleading in the alternative, that Plaintiffs claims are barred to the extent that they violate the Due Process or Ex Post Facto clauses ead, if such be necessary, and pleading in the alternative, that Defendants’ right under the Due Process Clause of the United States Constitution and applicable other arrangement that might distort a government attorney’s duty to pursue justice rather than his or her personal interests, financial or otherwise, in the context of a civil enforcement proceeding, including by Plaintiff's use of a ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred, in whole or in part, to the extent that they violate the Dormant Commerce Clause of the United States Constitution. ead, if such be necessary, and pleading in the alternative, that they deny all types of causation including without limitation cause in fact, proximate cause and claims asserted against De ead, if such be necessary, and pleading in the alternative, that the Petition, and each alleged claim contained therein, is barred, in whole or in part, because Defendants did not proximately cause the damages complained of, and because the acts of other persons (including individuals engaged in the illegal distribution or use of opioids without a proper prescription) intervened between Defendants’ acts and Plaintiff's harms. Defendants had no legal duty to protect Plaintiff from the intentional criminal acts of ead, if such be necessary, and pleading in the alternative, that the injuries and damages claimed by Plaintiff resulted from an intervening or superseding cause and/or causes, and any act or omission on the part of Defendants was not the proximate and/or competent producing cause of such alleged injuries and damages. ead, if such be necessary, and pleading in the alternative, that Plaintiff's injuries and damage due to illicit use or abuse of the medications at issue on the part of the medication users ead, if such be necessary, and pleading in the alternative, that any injuries and/or damages sustained by Plaintiff may have been caused or contributed to by the negligence or actual conduct of Plaintiff and/or other persons, firms, corporation, or entities over whom Defendants had no control or ead, if such be necessary, and pleading in the alternative, that any injuries or damages alleged in the Petition may have been caused by unforeseeable and uncontrollable circumstances and/or other forces over which Defendants had no control and for e-existing me ead, if such be necessary, and pleading in the alternative, that any and all damages alleged by Plaintiff were caused by misuse of the products involved, failure to use the products properly, and/or alteration of, or criminal misuse or abuse of the product by third parties over whom Defendants had no control and for whom Defendants are not responsible. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred to the extent they are based on alleged criminal acts of third parties, which Defendants have no duty to control or prevent and which operate as superseding causes ead, if such be necessary, and pleading in the alternative, that damage as a result of any act ead, if such be necessary, and pleading in the alternative, that the derivative injury r ss doctrine bar Plaintiff from recovering payments that Plaintiff allegedly made on behalf of residents to reimburse any expenses for health care, pharmaceutical care, and other public services. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred to the extent that Defendants have valid defenses that bar recovery by ead, if such be necessary, and pleading in the alternative, that Plaintiffs claims are subject to all defenses that could be asserted if Plaintiff's claims were properly made by individuals on whose behalf or for whose alleged damages Plaintiff seeks to ead, if such be necessary, and pleading in the alternative, that Plaintiff has failed to comply with the requirement that it must identify each patient in whose claim(s) it has a subrogation i ead, if such be necessary, and pleading in the alternative, that Plaintiff has failed to plead that it reimbursed any prescriptions for any opioid distributed by Defendants that harmed patients and should not have been written, or that Defendants’ allegedly improper conduct caused any health care provider to write any ineffective or harmful opioid ead, if such be necessary, and pleading in the alternative, that Plaintiff's alleged damages ead, if such be necessary, and pleading in the alternative, that any recovery by Plaintiff may be barred or reduced, in whole or in part, by the principles of comparative or contributory fault and proportionate responsibility, pursuant to Chapters 32 and 33 emedies Code and at common law. ead, if such be necessary, and pleading in the alternative, that any recovery against Defendants is barred or limited under the principles of assumption of the risk and informed consent. ead, if such be necessary, and pleading in the alternative, that Plaintiff's damages, if any, were caused by the active, direct, and proximate negligence or actual conduct of entities or persons other than Defendants, and in the event that Defendants are found to be liable to Plaintiff, Defendants will be entitled to indemnification, contribution, and/or apportionment. Defendants further assert, if such be necessary, and pleading in the alternative, their right to a proportionate reduction of any damages found against them, based on the product, negligence, or other conduct of any settling tortfeasor and/or responsible third party and/or ead, if such be necessary, and pleading in the alternative, that a specific percentage of the tortious conduct that proximately caused the injury or loss to person or property is attributable to (i) Plaintiff, (ii) other parties from whom Plaintiff seeks recovery, and (ili) persons from whom Plaintiff does not seek recovery in this action, including, but not limited to, prescribing practitioners, non-party pharmacies and pharmacists, individuals and entities distribution and sale of illegal opioids, individuals involved in procuring diverted prescription opioids and/or illegal drugs, delivery services, federal, state, and local government entities, and health insurers and pharmacy benefit managers. ead, if such be necessary, and pleading in the alternative, that any verdict or judgment that might be recovered by Plaintiff must be reduced by those amounts that have already indemnified or with reasonable certainty will indemnify Plaintiff in whole or in part for any past or future claimed economic loss from any collateral source or any other applicable ead, if such be necessary, and pleading in the alternative, that if any Defendant is found liable for Plaintiff's alleged injuries and losses (which liability is specifically denied) and the percentage of responsibility attributed to that Defendant with respect to a cause of action is not greater than 50 percent, Defendant would be liable to Plaintiff only for the percentage of the damages found by the trier of fact equal to Defendant’s percentage of pect to the economic loss or other harm for which damages are allowed. ead, if such be necessary, and pleading in the alternative, that any and all damages claimed by Plaintiff, whether actual, compensatory, punitive, attorneys’ fees, plicable statutory exclusions, caps, and limitations. ead, if such be necessary, and pleading in the alternative, that any damages that Plaintiff may recover against Defendants must be reduced to the extent that damages for alleged injuries or expenses related to the same user(s) of the subject prescription medications, or damages recovered or recoverable by other actual or potential plaintiffs. Any damages that Plaintiff may recover against Defendants must be reduced to the extent they unjustly enrich Plaintiff. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims fail to the extent they are based on a theory of market share liability, which is not a recognized means for recovering damages under Texas law. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred or limited by the economic loss r ead, if such be necessary, and pleading in the alternative, that Plaintiff is barred, in whole or in part, from r incurred in providi or municipal cost recovery doct ead, if such be necessary, and pleading in the alternative, that Plaintiff may have failed or refused to exercise reasonable care and diligence to avoid loss and minimize damages and, therefore, may not recover for losses that could have been prevented by reasonable efforts on its part, or by expenditures which might reasonably have been made. Recovery, if any, should therefor ilure to mitigate damages, if any. ead, if such be necessary, and pleading in the alternative, that to the extent Plaintiff attempts to seek equitable relief, Plaintiff is not entitled to such relief because Plaintiff has an adequate remedy at law. ead, if such be necessary, and pleading in the alternative, that the claims asserted in the Petition are barred, in whole or in part, because federal agencies have exclusive or primary jurisdiction over the matters asserted in the Petition. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are preempted by federal law, including (without limitation) the federal Controlled Substances Act and the Food, Drug, and Cosmetic Act ead, if such be necessary, and pleading in the alternative, that the conduct of Defendants conformed with the FDCA and the requirements of the FDA, and the activities of Defendants alleged in the Petition conformed with all state and federal statutes, regulations, and industry standards based on the state of knowledge at the relevant time(s) alleged ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred, in whole or in part, by conflict preemption as set forth in the United States Supreme Court’s decisions in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) and Mutual ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are preempted insofar as they conflict with Congress’s purposes and objectives in enacting relevant federal legislation and authorizing regulations, including the Hatch-Waxman Amendments to the FDCA and implementing regulations. ead, if such be necessary, and pleading in the alternative, that to the extent Plaintiff claims that Defendants misled or defrauded FDA or any other federal agency with respect to the Manufacturer Defendants’ disclosure of information related to the safety of their medications at issue, such claims are preempted by federal law. See Buckman v. Plaintiffs’ ead, if such be necessary, and pleading in the alternative, that to the extent Plaintiff claims that Defendants misled or defrauded DEA or any federal agency by failing to report suspicious pharmacy orders or other information, such claims are preempted by ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred, in whole or in part, by the deference that common law accords discretionary actions by the FDA under the FDCA and discretionary actions by the DEA under the Controlled Substances Act. ead, if such be necessary, and pleading in the alternative, that if Plaintiff incurred the damages alleged, which is expressly denied, Defendants are not liable for damages because the methods, standards, or techniques of designing, manufacturing, labeling, and distributing of the prescription medications at issue complied with and were in conformity with the laws and regulations of the Controlled Substances Act, the FDCA, and the generally recognized state of the art in the industry at the time the product was designed, manufactured, labeled, and ead, if such be necessary, and pleading in the alternative, that pursuant to Texas Civil Practice & Remedies Code § 82.007, Defendants are not liable with respect to any allegations involving failure to provide adequate warnings or information because all warnings or information that accompanied the allegedly distributed products were approved by the United States Food & Drug Admini ral Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), as amended, or Section 351, Public Health Service Act (42 U.S.C. Section 262), as amended, or the warnings and information provided were those stated in monographs developed by the United States Food & Drug Administration for pharmaceutical products that may be distributed without an appr ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims and alleged damages are barred mediary doctrine. ead, if such be necessary, and pleading in the alternative, that ny statutory or common law du ead, if such be necessary, and pleading in the alternative, that Defendants appropriately, completely, and fully performed and discharged any and all obligations matters alleged in the Petition. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred, in whole or in part, because Defendants complied at all relevant times ead, if such be necessary, and pleading in the alternative, that to the extent that Plaintiff relies on letters or other informal guidance from the DEA to establish Defendants’ regulatory duties, such informal guidance cannot enlarge Defendants’ regulatory duties in the absence of compliance by DEA with the requirements of the Administrative Procedure Act, 5 U.S.C. § 551 ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are barred t lleged violations of industry customs because purported industry customs do not create legal duties o ead, if such be necessary, and pleading in the alternative, that the claims asserted in the Petition are barred, in whole or in part, by the Restatement (Second) of d Restatement (Third) of Tort ead, if such be necessary, and pleading in the alternative, that to the extent that Plaintiff is alleging fraud, fraudulent concealment, or similar conduct, Plaintiff ead, if such be necessary, and pleading in the alternative, that Plaintiff fails to plead any actionable misrepresentation or omission made by or attributable to ead, if such be necessary, and pleading in the alternative, that no conduct of Defendants was misleading, unfair, or deceptive. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims may be barred, in whole or in part, because neither the users nor their prescribers of the medications allegedly distributed by Defendants, nor Plaintiff itself, relied to their detriment upon any statement by Defendants in determining to use the medi ead, if such be necessary, and pleading in the alternative, that Defendants are not liable for any statements in the Manufacturer Defendants’ branded or unbranded materials. ead, if such be necessary, and pleading in the alternative, that Plaintiff's nuisance claims are barred to the extent that it lacks the statutory authority to bring a nuisance claim under Texas law or its own applicable county or municipal codes or regulations. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claim of public nuisance is barred or limited becau interference with real property ving the use of an otherwise legal product does not involve a public right against the distributor sufficient to state a claim for public nuisance; the alleged public nuisance would have impermissible extraterritorial reach; and the alleged conduct of Defendants is too remote from the alleged injury as a matter of ead, if such be necessary, and pleading in the alternative, that Plaintiff's claim for unjust enrichment is barred or limited because Defendants did not receive and retain any alleged benefit from Plaintiff. ead, if such be necessary, and pleading in the alternative, that Plaintiffs claims are barred, reduced, and/or limited pursuant to the applicable Texas statutory and common law regarding limitations nd setoffs. ead, if such be necessary, and pleading in the alternative, that if Defendants are found liable to Plaintiff in any amount, Defendants are entitled to a credit or set- off for any and all sums Plaintiff has received in the way of any and all settlements. ead, if such be necessary, and pleading in the alternative, that Plaintiff's Petition is barred, in whole or in part, by the doctrines of acquiescence, settlement, or release. ead, if such be necessary, and pleading in the alternative, that Defendants’ liability, if any, will not result from their conduct but is solely the result of an obligation imposed by law, and thus Defendants are entitled to complete indemnity, express or implied, by other parties. ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims for punitive or exemplary damages or other civil penalties are barred or reduced by applicable law or statute or, in the alternative, are unconstitutional insofar as they violate the due process protections afforded by the United States Constitution, the excessive fines clause of the Eighth Amendment of the United States Constitution, the Full Faith and Credit Clause of the United States Constitution, and applicable provisions of the Constitution of this State or that of any other state whose laws may apply. Any law, statute or other authority purporting to permit the recovery of punitive damages or civil penalties in this case is unconstitutional, facially and as applied, to the extent that, without limitation, it: (1) lacks constitutionally sufficient standards to guide and restrain the jury’s discretion in determining whether to award punitive damages or civil penalties and/or the amount, if any; (2) is void for vagueness in that it fails to provide adequate advance notice as to what conduct will result in punitive damages or civil penalties; (3) unconstitutionally may permit recovery of punitive damages or civil penalties based on harms to third parties, out-of-state conduct, conduct that complied with applicable law, or conduct that was not directed, or did not proximately cause harm, to Plaintiff; (4) unconstitutionally may permit recovery of punitive damages or civil penalties in an amount that is not both reasonable and proportionate to the amount of harm, if any, to Plaintiff and to the amount of compensatory damages, if any; (5) unconstitutionally may permit jury consideration of net worth or other financial information relating to Defendants; (6) lacks constitutionally sufficient standards to be applied by the trial court in post-verdict review of any award of punitive damages or civil penalties; (7) lacks constitutionally sufficient standards for appellate review of any award of punitive damages or civil penalties; (8) would unconstitutionally impose a penalty, criminal in nature, without according to Defendants the same procedural protections that are accorded to criminal defendants under the constitutions of the United States, this S may apply; and (9) otherwise fails to satisfy Supreme Court precedent, including, without limitation, Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991); TXO Production Corp. v. , 509 U.S. 443 (1993); BMW of N. Am. v. Gore, 517 U.S. 559 (1996); Farm Ins. Co. v. Campbell, 538 U.S. 408 (2003); and Philip Morris USA v. Williams, 549 U.S. ssert all of the limitations and requirements cont 41 of the Texas Civil Practice & Remedies Code. ead, if such be necessary, and pleading in the alternative, that to the extent that Plaintiff seeks punitive, exemplary, or aggravated damages, any such damages are barred because the product at issue, and its labeling, were subject to and received pre-market ead, if such be necessary, and pleading in the alternative, that Plaintiff's claim for punitive or exemplary damages is barred for one or more of the following reasons: (a) Plaintiff cannot prove by clear and convincing evidence that Defendants were grossly negligent, and (b) Defendants have neither acted nor failed to act in any manner which entitles e or exemplary damages. ead, if such be necessary, and pleading in the alternative, that Plaintiff cannot obtain relief on its claims based on actions undertaken by Defendants of which of all material facts. ead, if such be necessary, and pleading in the alternative, that Defendants are entitled to, and claims the benefit of, all defenses and presumptions set forth in or arising from any rule of law or statute of Texas or any other state whose substantive law might ead, if such be necessary, and pleading in the alternative, that Plaintiff's claims are ba Defendants further assert, if such be necessary, and pleading in the alternative, all applicable defenses under Texas Rule of Civil Procedure 94, as investigation and discovery proceeds. ead, if such be necessary, and pleading in the alternative, that to the extent they are not otherwise incorporated herein, Defendants incorporate as a defense the defenses and arguments raised in any Rule 91a motions to dismiss of the Defendants, Manufacturer this case. ead, if such be necessary, and pleading in the alternative, that there is no justiciable issue. Plaintiff has failed to assert claims over which the Court has the power to exercise its authority. ead, if such be necessary, and pleading in the alternative, that Plaintiff has no authority or right to bring such claims on behalf of itself or the citizens of the ead, if such be necessary, and pleading in the alternative, that the Petition fails in whole or in part because there is no genuine issue of material fact and udgment as a matter of law. ead, if such be necessary, and pleading in the alternative, that not legally foreseeable. ead, if such be necessary, and pleading in the alternative, that there is no cause of action in the Texas Controlled Substances Act or its legislative rules against ead, if such be necessary, and pleading in the alternative, that Plaintiff lacks the authority to file suit to collect penalties or fines based on alleged violations of the Texas Controlled Substances Act. ead, if such be necessary, and pleading in the alternative, that Defendants are not liable to Plaintiff because Defendants are non-manufacturing sellers under Texas Civil Practice & Remedies Code § 82.003. ead, if such be necessary, and pleading in the alternative, that under Texas Civil Practice & Remedies Code § 82.008, Defendants are not liable for any injury allegedly caused to Plaintiff by the products in question because all formulations, labeling, and design of the products complied with mandatory safety standards or regulations adopted and promulgated by the federal government, or an agency of the federal government, that were applicable to the products at the time of manufacture and that governed the product risk that allegedly caused the purported harm. ead, if such be necessary, and pleading in the alternative, that Plaintiff's alleged damages were caused by the intentional and criminal activities of unidentified persons, including numerous unknown persons who abused, misused, wrongfully obtained, illegally trafficked, and/or sold prescription opioids in violation of criminal law. The criminal acts of these unknown persons caused the alleged loss or injury that is the subject of this lawsuit. As required by § 33.004(k) of the Texas Civil Practices & Remedies Code, Defendants will refer to these unknown criminals as the “Does” until their identities are known because this case and ead, if such be necessary, and pleading in the alternative, that Plaintiff's retention of private special counsel violates Texas law and the Due Process Clause because the County does not have a population of more than 1.25 million. Tex. Loc. Gov’t Code § 89.001 (authorizing retention of special counsel to represent the county in a suit brought by or against county only where county’s population is greater than 1.25 million). Counties, like the County, with populations below 1.25 million lack statutory authority to retain private counsel. ead, if such be necessary, and pleading in the alternative, that Plaintiffs civil conspiracy claim fails because civil conspiracy is a derivative tort and Defendants Defendants adopt by reference any additional applicable defense defendants not otherwise pled herein and reserve the right to amend this answer to assert any such Defendants hereby give notice that they may rely upon any other applicable affirmative defense(s) of which they may become aware during discovery in this Action and reserve the right to amend this DEMAND FOR BIFURCATED TRIAL Pursuant to Texas Rule of Civil Procedure 174(b), if Plaintiff is permitted to proceed to trial upon any claims for punitive or exemplary damages, Defendants move that such claims, if any, be bifurcated from the remaining issues. DEMAND FOR JURY TRIAL Defendants hereby demand a trial b WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon the trial or hearing of this matter, Plaintiff recovers nothing against Defendants, that the Petition be dismissed, that costs of court be assessed against Plaintiff, and for such other and further relief, both general ly entitled. Respectfully submitted, By:_/s/ Matt R. Raley Michael W. Mengis, mmengis@bakerlaw.com State Bar No. 13941040 Matt R. Raley mraley@bakerlaw.com State Bar No. 24051224 BAKER & HOSTETLER LLP 811 Main Street, Suite 1100 Houston, Texas 77002 Phone: 713.751.1600 Fax: 713.751.1717 emainigi@wc.com Ashley W. Hardin Williams & Connolly LLP 725 Twelfth Street N.W. Facsimile: (202) 434-5029 denotes national counsel who will seek CARDINAL HEALTH INC. AND CERTIFICATE OF SERVICE Pursuant to the provisions of the Texas Rules of Civil Procedure, I certify that a copy of the foregoing was served on all known counsel of record electronically on this the 25th day of /s/ Matt R. Raley Matt R. Raley