Rel: March 17, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

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1210337

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Ex parte Cardinal Health, Inc., et al. 

PETITION FOR WRIT OF MANDAMUS

(In re: DCH Health Care Authority et al.

v.

Purdue Pharma, L.P., et al. 

and 

Fort Payne Hospital Corporation et al.

v. 
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2

McKesson Corporation et al.) 

(Conecuh Circuit Court: CV-19-7 and CV-21-900016)

PER CURIAM.

PETITION DENIED. NO OPINION.

Parker, C.J., and Wise, Bryan, Mendheim, Stewart, and Mitchell, 

JJ., concur. 

Shaw, J., dissents. 

Sellers, J., dissents, with opinion.
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SELLERS, Justice (dissenting).

The petitioners, each of whom is a defendant in at least one of two 

consolidated actions below, are manufacturers, marketers, distributors, 

or dispensers of prescription opioid medications.1 They, along with other 

defendants, are accused of creating a public nuisance in the form of an 

opioid epidemic. The Conecuh Circuit Court ("the trial court") denied the 

petitioners' motions to dismiss the actions pursuant to § 6-5-440, Ala.

Code 1975, commonly known as Alabama's abatement statute. I 

respectfully dissent from the majority's refusal to issue a writ of 

mandamus directing the trial court to grant the motions to dismiss.

Before these actions were commenced, several Alabama counties 

had commenced actions involving the petitioners in federal district courts 

in Alabama ("the federal actions"). Like the complaints in the underlying 

actions, the complaints in the federal actions set out claims accusing the 

1The petitioners are Cardinal Health, Inc.; Teva Pharmaceuticals 

USA, Inc; Cephalon, Inc.; Watson Laboratories, Inc.; Actavis LLC; 

Actavis Pharma, Inc.; Endo Pharmaceuticals Inc.; Endo Health Solutions 

Inc.; Johnson and Johnson; Janssen Pharmaceuticals, Inc; Allergan 

Finance, LLC; Allergen Sales, LLC; Allergen USA, Inc.; 

AmerisourceBergen Drug Corporation; CVS Pharmacy, Inc.; CVS 

Indiana, L.L.C.; Walmart Inc.; Wal-Mart Stores East, LP; Noramco, Inc.; 

and McKesson Corporation.
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petitioners and other defendants of creating a public nuisance in the form 

of an opioid epidemic. In the federal actions, the counties asserted that 

the petitioners had contributed to the opioid epidemic and had harmed 

the public health by improperly marketing prescription opioids and by 

oversupplying local communities with prescription opioids. The counties 

claimed responsibility for the public health, safety, and welfare of their 

residents and sought to abate the public-health hazard caused by the 

opioid epidemic and to recover expenses incurred as a result of the 

epidemic, including medical-care costs, addiction-treatment and welfare 

costs, law-enforcement costs, and judicial costs. For purposes of pretrial

proceedings, the federal actions were consolidated with other similar 

federal cases in the United States District Court for the Northern District 

of Ohio.

In September 2019, after the federal actions had been commenced, 

numerous public health-care authorities that operate hospitals in 

Alabama commenced an action in the trial court, making factual 

allegations against opioid marketers, distributors, and suppliers 

substantially similar to those made by the counties in the federal actions; 

that action was assigned case no. CV-19-7 and named as defendants, 
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5

among others, each of the petitioners except McKesson Corporation (see

note 1, supra). Like the counties, the health-care authorities sought to 

abate the alleged public nuisance caused by prescription-opioid abuse 

and to recover costs associated with treating opioid-related conditions. 

Later, in March 2021, a second substantially similar action was initiated 

in the trial court by more public health-care authorities; that action was 

assigned case no. CV-21-900016 and named as defendants, among others, 

each of the petitioners (see note 1, supra). The two Conecuh County 

actions were consolidated by the trial court. The plaintiffs in one or the 

other of the Conecuh County actions include, among others, the DCH 

Health Care Authority, the Health Care Authority of Clarke County, the 

Bibb County Healthcare Authority, the Dale County Health Care 

Authority, the Greene County Hospital Board, and the Geneva County 

Health Care Authority, each of whom is a respondent to the mandamus 

petition. These health-care authorities are intertwined with the counties 

in which they operate. See, e.g., § 22-21-313, Ala. Code 1975 (allowing a 

health-care authority to incorporate with the approval of a county); § 22-

21-338, Ala. Code 1975 (authorizing counties to designate health-care 

authorities as agencies of counties "to acquire, construct, equip, operate 
1210337

6

and maintain public hospital facilities" within the counties). Certificates 

of incorporation indicate that the board members of the health-care 

authorities are chosen, at least in part, by the governing bodies of the 

counties.

The petitioners moved to dismiss the Conecuh County actions to the 

extent that the claims asserted against them in those actions arose from 

alleged harm occurring in counties that are plaintiffs in one of the federal 

actions. The petitioners argued that the claims asserted against them in 

the Conecuh County actions are duplicative of the claims asserted 

against them by the counties in the federal actions and are therefore 

prohibited by the abatement statute. The trial court denied the motions 

to dismiss, and the petitioners filed their mandamus petition.

The abatement statute prohibits a plaintiff from "prosecut[ing] two 

actions in the courts of this state at the same time for the same cause and 

against the same party." § 6-5-440. For purposes of abatement, courts 

of this state include federal district courts in Alabama. Weaver v. Hood, 

577 So. 2d 440, 442 (Ala. 1991).2

2I do not find persuasive the respondents' argument that the federal 

actions are not subject to the abatement statute simply because they have 

been temporarily transferred to a multidistrict-litigation proceeding in 
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The federal actions and the Conecuh County actions involve the 

"same cause" because the claims in those actions "arose from the same 

underlying operative facts." Ex parte Compass Bank, 77 So. 3d 578, 581 

(Ala. 2011). The plaintiffs in each action allege that the petitioners, 

among other defendants, harmed the public by oversupplying 

prescription opioids and by downplaying the risks of opioids.

Although the counties in the federal actions and the public healthcare authorities in the Conecuh County actions technically are separate 

entities, § 6-5-440 applies as long as the plaintiffs share a sufficient 

"identity of interest." See Ex parte Boys & Girls Clubs of S. Alabama, 

Inc., 163 So. 3d 1007, 1015 (Ala. 2014) (plurality opinion). In my view, 

the counties in the federal actions share an identity of interest with the 

health-care authorities in the Conecuh County actions because each 

plaintiff seeks remedies for damages the opioid epidemic caused to the 

public in that plaintiff's respective county. The health-care authorities 

provide health-care services in their counties, and in the federal actions 

Ohio for pretrial matters. The federal actions were commenced in 

Alabama, and, once pretrial proceedings are concluded, they will be 

transferred back to Alabama for further prosecution. See 28 U.S.C. § 

1407(a).
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the counties seek to recover for increased health-care costs caused by the 

petitioners' and others' allegedly "flooding" the counties with prescription 

opioids. In other words, the plaintiffs in each of the actions seek to 

remedy the same societal problem plaguing the same communities. As 

stated by the petitioners, the counties and the health-care authorities 

share a common mission, namely, "to promote public health in the 

Counties." Petition at 22.

If the petitioners' motions to dismiss filed in the Conecuh County 

actions are not granted, they will be forced to defend against the "same 

case" multiple times and will face the possibility of inconsistent rulings 

and double recovery, which are the very problems § 6-5-440 seeks to 

avoid. Accordingly, I would grant the petition for a writ of mandamus.