Opinion
C. A. PC-2018-4555
07-07-2020
STATE OF RHODE ISLAND, by and through PETER NERONHA, Attorney General Plaintiff, v. PURDUE PHARMA L.P.; PURDUE PHARMA INC.; THE PURDUE FREDERICK COMPANY, INC.; RHODES PHARMACEUTICALS L.P.; RHODES TECHNOLOGIES; RHODES TECHNOLOGIES INC.; RICHARD S. SACKLER; TEVA PHARMACEUTICALS USA, INC.; CEPHALON, INC.; MALLINCKRODT PLC; MALLINCKRODT, LLC; SPECGX, LLC; CARDINAL HEALTH, INC.; MCKESSON CORPORATION d/b/a MCKESSON DRUG COMPANY; and AMERISOURCEBERGEN DRUG CORPORATION, Defendants.
For Plaintiff: See attached For Defendant: See attached
For Plaintiff: See attached
For Defendant: See attached
DECISION
GIBNEY, P.J.
Before this Court is Defendant Mallinckrodt PLC's (Mallinckrodt) Motion to Stay the Court's order permitting the State of Rhode Island (the State) to depose two executives while Mallinckrodt's writ of certiorari is pending with the Rhode Island Supreme Court. For the following reasons, the Court denies Mallinckrodt's motion. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.
On May 5, 2020, the Court granted a Motion to Compel the depositions of two Mallinckrodt executives-Mark Trudeau and Matthew Harbaugh-in the State's ongoing litigation against the manufacturers and distributors of opioid pharmaceuticals. State v. Purdue Pharma L.P., No. PC-2018-4555, 2020 WL 2315956 (R.I. Super. May 5, 2020). Mallinckrodt now asks this Court to stay that decision as it appeals the order to the Rhode Island Supreme Court. Mallinckrodt filed its writ of certiorari with the Supreme Court on June 3, 2020. (Def.'s Mot. to Stay Reply, Ex. A.)
A more complete recitation of the underlying facts in this case can be found in State v. Purdue Pharma L.P., No. PC-2018-4555, 2018 WL 6074198 (R.I. Super. Nov. 15, 2018).
To succeed on a motion to stay, the moving party must make '"a strong showing that (1) it will prevail on the merits of its appeal; (2) it will suffer irreparable harm if the stay is not granted; (3) no substantial harm will come to other interested parties; and (4) a stay will not harm the public interest."' Town of North Kingstown v. International Association of Firefighters, Local 1651, AFL-CIO, 65 A.3d 480, 481 (R.I. 2013) (quoting Narragansett Electric Co. v. Harsch, 367 A.2d 195, 197 (R.I. 1976)). These are '"interrelated considerations that must be balanced together."' Id. (quoting Service Employees International Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012). However, the '"sine qua non . . . is whether the [moving party] [is] likely to succeed on the merits . . ."' Id. at 482 (quoting Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 16-17 (1st Cir. 2002)).
Because our Court's rule governing motions to stay "is modeled after Rule 8 of the Federal Rules of Appellate Procedure," this Court will look to federal case law for guidance with respect to that rule. Town of North Kingstown, 65 A.3d at 481.
Mallinckrodt contends that it is likely to prevail on the merits of its appeal to the Rhode Island Supreme Court because this Court did not properly apply the apex doctrine, and thus the depositions are likely to be reversed. This argument simplifies the appeal process. Writs of certiorari are discretionary with our Supreme Court and not often granted. See Dietz v. Rhode Island Board of Professional Land Surveyors, 769 A.2d 619, 621 (R.I. 2001) ("[The Supreme Court] is vested with discretionary power in the issuance of a writ of certiorari . . .") (citations omitted). Moreover, when an appeal is interlocutory, the moving party must present "circumstances that [are] sufficiently unusual and important to overcome [the Court's] persistent reluctance to review interlocutory orders or to permit matters to be brought before [it] in piecemeal fashion." Gilbert v. Travelers Indemnity Co., 117 R.I. 515, 517-18, 368 A.2d 1236, 1237 (1977).
The apex doctrine prohibits the depositions of high-ranking corporate executives unless the party seeking the deposition can show that the deponent possesses "unique personal knowledge of relevant facts" and other avenues for obtaining the information have been exhausted. See Serrano v. Cintas Corp., 699 F.3d 884, 900 (6th Cir. 2012); Smithfield Business Park, LLC v. SLR International Corp., No. 5:12-CV-282-F, 2014 WL 547078, at *2 (E.D. N.C. 2014).
Even if our Supreme Court were to grant Mallinckrodt's writ, it is unclear how it will decide the apex doctrine issue. Though many courts have adopted the approach, the apex doctrine is not universal. See, e.g. Serrano v. Cintas Corp., 699 F.3d 884, 902 (6th Cir. 2012) (holding that magistrate erred as a matter of law in relying on apex doctrine to grant protective order as to depositions); State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 607 (Mo. 2002) (en banc) (declining to adopt "apex" rule for depositions). Additionally, the Court may find that the State presented sufficient evidence to justify the depositions even under the apex doctrine. Thus, the high degree of uncertainty present in Mallinckrodt's appeal prevents a strong showing of success on the merits. See Martin v. Lincoln Bar, Inc., 622 A.2d 464 (R.I. 1993) (plaintiff failed to demonstrate likelihood to succeed on merits where prerequisite for statutory relief was not yet satisfied).
Mallinckrodt argues that it will suffer irreparable injury absent a stay because permitting the State to proceed with the depositions would deny Mallinckrodt effective review as to the apex doctrine question. In support of this contention, it cites to cases wherein courts found that denial of a party's right to secure meaningful review absent a stay constituted a sufficient irreparable injury. See Providence Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir. 1979) (finding irreparable injury where lack of stay while appeal was pending would result in FBI documents being disclosed to journalists); John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1309 (1989) (granting a stay pending resolution on writ of certiorari where disclosure of FOIA documents would moot any effective review).
However, those were cases where "denial of a stay will utterly destroy the status quo, irreparably harming appellants" and would result in disclosure of highly sensitive documents. Providence Journal, 595 F.2d at 890. The taking of two depositions does not rise to that level of irreparable injury because loss of "money, time, and energy necessarily expended in the absence of a stay" are compensable and thus not sufficient. Zirkle v. District of Columbia, 830 A.2d 1250, 1257 (D.C. 2003) (quoting Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 n.4 (D.C. Cir. 1958)). In addition, the Defendant has not put forth any specific factual evidence as to how the executives would be harmed by being deposed, as is the standard for a protective order in Rhode Island. See Estate of Chen v. Lingting Ye, 208 A.3d 1168, 1174 (R.I. 2019) ('"Broad allegations of harm . . . do not satisfy the Rule 26(c) test [for a protective order against deposition]."') (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). Here, the alleged harm absent a stay does not rise to the level of irreparable injury and has not been substantiated by "particular factual" evidence on the record. Id. at 1173.
Lastly, consideration of potential harm to the State and the public interest weighs against granting a stay. While a delay for the State on taking two depositions may not rise to the level of substantial harm, this Court has noted the necessity of a "speedy and efficient resolution to this litigation" given the urgent nature of the opioid epidemic. State v. Purdue Pharma L.P., No. PC-2018-4555, 2018 WL 6074198, at *3 (R.I. Super. Nov. 15, 2018). Thus, staying the discovery process will extend an already lengthy and complex case in which the public has a vested interest.
For these reasons, the Court denies Mallinckrodt's Motion to Stay the Court's May 5, 2020 order. Counsel will prepare the appropriate order for entry.