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Lawsuit Against Opioid Drugmakers Also Targets Tennessee Tort Reform

In a strange twist, a lawsuit targeting opiate drugmakers filed Tuesday will pit one group of elected officials - three upper East Tennessee prosecutors - against another group of politicos - state legislators.

Prosecutors Barry Staubus, Dan Armstrong and Tony Clark, who collectively represent nine counties in upper East Tennessee, filed a lawsuit Tuesday in Sullivan County Circuit Court against three drugmakers, seeking to hold them financially accountable for the state's opioid epidemic.

► More: Tennessee counties slap Big Pharma with lawsuit over opioid epidemic costs

Tucked at the end of the 87-page lawsuit is a challenge of the constitutionality of tort reform state lawmakers passed in 2011 that caps the amount of "non-economic" damages such as pain and suffering and punitive damages to a total of $1.25 million in civil lawsuits against businesses, manufacturers, doctors, medical providers and the like.

Known as the Tennessee Civil Justice Act of 2011, the law was touted as a means to make the state more business friendly and prevent runaway juries from rendering billion-dollar verdicts as punishment for things such as faulty products, unsafe business practices and medical malpractice.

Tennessee's defense bar has long objected to the caps as protecting bad actors in the business and medical community.

Now, as the prosecutors seek via Tuesday's lawsuits to deliver a financial blow to opioid drugmakers whose annual revenues from opiates collectively total more than $10 billion, that tort reform law and its caps stand in the way.

Nashville law firm Branstetter, Stranch and Jennings, which filed the lawsuit on behalf of the prosecutors, is using the litigation to challenge those caps as unconstitutional.

"(The caps) are unconstitutional deprivations of plaintiffs' constitutionally protected right to trial by jury," the lawsuit stated. "The subject statutory caps usurp the powers of the judicial branch in violation of ... the Tennessee constitution."

A copy of the lawsuit was to be served on Tennessee Attorney General Herbert Slatery III, whose job includes defending state laws against constitutional challenges. Slatery's office did not have immediate comment Tuesday.

The lawsuit asks a judge to strike down the tort reform law and declare "that the caps on personal injury and punitive damages are an unconstitutional deprivation" of citizens' rights under both the U.S. and Tennessee constitutions.

The three upper East Tennessee prosecutors are using another law - the Tennessee Drug Dealer Liability Act of 2005 - to try to label drugmakers Purdue Pharma, Mallinckrodt and Endo Pharmaceuticals as drug dealers. The lawsuit accuses the opioid makers of lying about the addictive properties of opiates, aggressively marketing opiates as a safe, miracle cure for all manner of pain and pushing doctors to prescribe them in record numbers.

It comes on the heels of legal action filed by Slatery's counterparts in Ohio, Illinois and Mississippi against opioid drugmakers. Tennessee, however, is not a party to the prosecutors' lawsuit, and Staubus said the trio did not consult with Slatery's office before filing the legal action. Slatery's office did not have immediate comment on whether it would seek to sue drugmakers on behalf of the state.

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