Cvs Pharmacy v. Hon. bostwick/tucson Medical ( 2021 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
CVS PHARMACY, INC., AND CVS ARIZONA, L.L.C.,
Petitioners,
v.
THE H ONORABLE JANET C. BOSTWICK, JUDGE OF THE SUPERIOR COURT OF
THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent Judge,
and
TUCSON MEDICAL CENTER,
Real Party in Interest.
No. CV-20-0120-PR
Filed September 1, 2021
Appeal from the Superior Court in Pima County
The Honorable Janet C. Bostwick, Judge
No. C20184991
REVERSED AND REMANDED
Order of the Court of Appeals, Division Two
No. CA-SA 2020-0012
Filed April 14, 2020
CVS PHARMACY, INC . V. H ON. BOSTWICK/TUCSON MEDICAL CENTER
Opinion of the Court
COUNSEL:
Andrew M. Federhar, Jessica A. Gale, Spencer Fane LLP, Phoenix, and
Conor B. O’Croinin (argued), Zuckerman Spaeder LLP, Baltimore, MD,
Attorneys for CVS Pharmacy, Inc. and CVS Arizona, L.L.C.
Ronald Jay Cohen, Daniel G. Dowd (argued), Betsy J. Lamm, Lauren M.
LaPrade, Cohen Dowd Quigley, P.C., Phoenix; Lance Oliver, Motley Rice
LLC, Mount Pleasant, SC; Steven C. Mitchell, Samuel F. Mitchell, Mitchell
& Speights, L.L.C, Scottsdale, Attorneys for Tucson Medical Center
Jeffrey C. Warren, Amanda Heitz, David T. Lundmark, Claudia C. Ionescu,
Charles M. Seby, Bowman and Brooke LLP, Phoenix, Attorneys for Amicus
Curiae Arizona Association of Defense Counsel
Troy P. Foster, Megan Weides, The Foster Group, PLLC, Phoenix; Chad
Golder, Esq. Washington, DC, Attorneys for Amici Curiae American
Hospital Association, Federation of American Hospitals and America’s
Essential Hospitals
Eric M. Fraser, Hayleigh S. Crawford, Osborn Maledon, P.A., Phoenix,
Attorneys for Amici Curiae Kingman Hospital, Inc., Arizona Spine and
Joint Hospital LLC, Bullhead City Hospital Corporation, Carondelet St.
Joseph’s Hospital, Holy Cross Hospital, Inc., Hospital Development of West
Phoenix, Inc., Northwest Hospital, LLC, Oasis Hospital, Oro Valley
Hospital, LLC, Orthopedic and Surgical Specialty Company, LLC, St.
Mary’s Hospital of Tucson, VHS Acquisition Subsidiary Number 1, Inc.,
VHS of Arrowhead, Inc., and Yuma Regional Medical Center
Timothy A. Nelson, The Nelson Law Group, PLLC, Phoenix, Attorney for
Amicus Curiae Arizona Hospital and Healthcare Association
Daniel J. O’Connor, Jr., Richard R. Reed, Jr., O’Connor & Dyet, P.C., Tempe;
A. Joshua Podoll and Danielle Sochaczevski, Williams & Connolly LLP,
Washington, DC, Attorney for Amicus Curiae Cardinal Health, Inc.
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Opinion of the Court
John J. Kastner, Jr., Rachel B. Weil, Steven J. Boranian, Jennings, Strouss &
Salmon, P.L.C., Tucson, Attorney for Amicus Curiae AmerisourceBergen
Drug Corporation
David L. Abney, Ahwatukee Legal Office, P.C., Phoenix, Attorney for
Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers
Association
Bradley J. Johnston, Levi T. Claridge, The Cavanagh Law Firm, Phoenix;
Charles C. Lifland, Sina S. Aria, O’Melveny & Myers LLP, Los Angeles, CA;
Steve Brody, O’Melveny & Myers LLP, Washington, DC; Todd Jackson,
Jean Roof, Jackson & Oden, P.C. Tucson; André H. Merrett, Thorpe Shwer,
P.C., Phoenix, John D. Lombardo, Jake R. Miller, Arnold & Porter, Los
Angeles, CA; Richard M. Amoroso, Gregory A. Davis, Squire Patton Boggs
(US) LLP, Phoenix; Brent A. Hawkins, Morgan, Lewis & Bockius LLP, San
Francisco, CA; Brian M. Ercole, Morgan, Lewis & Bockius LLP, Miami,
Florida, Attorneys for Amicus Curiae Pharmaceutical Manufacturers
________________
JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
LOPEZ, BEENE, and PELANDER (Retired) * joined. **
_______________
* Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
Justice John Pelander (Ret.), was designated to sit in this matter.
**Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.
CVS PHARMACY, INC . V. H ON. BOSTWICK/TUCSON MEDICAL CENTER
Opinion of the Court
JUSTICE BOLICK, opinion of the Court:
¶1 This case concerns whether a hospital may directly recover
from a third party the costs of uncompensated medical care provided to
patients whose need for treatment the third party allegedly caused, and
whether a pharmacy that self-distributes prescription opioids to its
affiliated pharmacies owes a duty to a hospital that incurs costs to treat
opioid-addicted patients. We hold that the exclusive right for a hospital to
recover from a third-party tortfeasor is through the medical lien statutes
and that a pharmacy does not owe a duty to a hospital under the facts
alleged here.
I. BACKGROUND
¶2 CVS Health Corporation operates centers that distribute
prescription drugs to CVS-branded retail pharmacies, which in turn sell
those medications to individual patients. Tucson Medical Center (“TMC”)
is a nonprofit community hospital serving residents throughout southern
Arizona.
¶3 In October 2018, TMC filed a complaint alleging a broad
“conspiracy” among drug manufacturers, distributors, and marketers (the
“Marketing and Distributor Defendants”) to establish a “network to
promote the use of opioids” by making “misrepresentations and omissions
regarding the appropriate uses, risks, and safety of opioids, to increase
sales, revenue, and profit from their opioid products.” In short, TMC
alleged the Marketing and Distributor Defendants created a false narrative
of opioid-friendly messaging, fueling the national opioid epidemic.
¶4 In July 2019, TMC filed its First Amended Complaint (the
“Complaint”), adding CVS Health Corporation; CVS Pharmacy, Inc.; CVS
Arizona, LLC; and specific CVS Pharmacies (collectively, “CVS”) as
defendants. TMC’s Complaint alleged that CVS, together with the
Marketing and Distributor Defendants, “extract billions of dollars of
revenue from the addicted American public while hospitals sustain tens of
millions of dollars of losses caused as a result of the reasonably foreseeable
consequences of the prescription opioid addiction epidemic.” The
Complaint also alleged that CVS “failed to exercise due care in dispensing,
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and instead dispensed far more opioids into Arizona communities than
were needed for licit use.” With respect to the individual CVS Pharmacies,
the Complaint alleged that each such store has a duty to establish policies
and procedures to avoid filling prescriptions indicative of abuse, to train
their employees on these policies and procedures, and to report potential
diversion of opioids—which occurs when individuals obtain prescription
opioids for nonmedical purposes—to the appropriate authorities.
¶5 The Complaint alleged that all defendants, including CVS,
were liable for negligence, wanton negligence, negligence per se, negligent
distribution, nuisance, and unjust enrichment (respectively, Counts 3, 4, 5,
7, 8, and 9). TMC alleged hospitals within the state incur “millions of
dollars in damages for the costs of uncompensated care,” and that TMC
suffered additional damages by incurring operating expenses, including
“additional training, additional security. . . . [and] special programs over
and above their ordinary hospital services” due to caring for opioid-
addicted patients. Unlike the hospitals in Ansley v. Banner Health Network,
TMC does not seek damages for Medicaid patients. See 248 Ariz. 143, 153
¶ 45 (2020) (holding that the lien statutes cannot allow hospitals to recover
the costs of medical care beyond the amounts provided by Medicaid).
¶6 CVS moved to dismiss the Complaint, arguing, as relevant
here, that: (1) Arizona’s medical lien statutes, specifically, A.R.S.
§ 33-934(A), precluded all TMC’s claims against it; and (2) CVS “did not
owe a duty to protect plaintiff from the harm alleged in the complaint.”
CVS also claimed TMC failed to state a legally cognizable claim against it
for nuisance or unjust enrichment. 1
¶7 The trial court denied CVS’s motion to dismiss, permitting all
claims against CVS to proceed. The court determined that TMC asserted a
direct claim for damages, which included claims for uncompensated
patient bills, and that it must take TMC’s factual assertion of direct loss as
1 The parties discuss TMC’s public nuisance claim in their briefs; however,
we did not accept review on that issue and decline to address it here. See
Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 21 (2003). The unjust enrichment
claim is also not before us.
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true. The court further found that “[s]tatutes and case law provide a
potential public policy basis for a CVS duty to [TMC],” that public policy
favors “regulating and preventing harm from opioids, whether distributed
or dispensed improperly under the law,” and that TMC “would arguably
be in a class of persons protected” by the statutes.
¶8 CVS filed a petition for special action in the court of appeals,
which declined jurisdiction. Judge Brearcliffe dissented, stating the court
should accept jurisdiction and grant relief to CVS.
¶9 We granted review because application of the Arizona
medical lien statutes, A.R.S. §§ 33-931 to -936, and whether a pharmacy
owes a duty to a hospital for the distribution of opioids to third parties,
present issues of statewide importance. We have jurisdiction under article
6, section 5(3) of the Arizona Constitution.
II. DISCUSSION
¶10 The only issue presently before us is whether the trial court
should have dismissed the negligence claims against CVS. Dismissal is
appropriate under Arizona Rule of Civil Procedure 12(b)(6) if, “as a matter
of law . . . plaintiffs would not be entitled to relief under any interpretation
of the facts susceptible of proof.” Fid. Sec. Life Ins. Co. v. Ariz. Dep’t of Ins.,
191 Ariz. 222, 224 ¶ 4 (1998). Because questions of law are reviewed de
novo, we review dismissal under Rule 12(b)(6) de novo. Coleman v. City of
Mesa, 230 Ariz. 352, 356 ¶ 8 (2012).
¶11 Our analysis in this case is informed by both federal and state
law. Federal law regulates the dispensing of pharmacological drugs and
addresses the opioid epidemic. State law generally governs the obligations
flowing from one person or entity to another with respect to injury claims
and remedies for damages. See generally In re Nat’l Prescription Opiate Litig.,
452 F. Supp. 3d 745 (N.D. Ohio 2020) (applying federal statutes and Florida
tort law in consolidated opioid cases in multidistrict federal litigation).
Here, TMC alleges that by various acts of negligence, the CVS defendants
inflicted economic harm on the hospital both in the form of uncompensated
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care it was required to provide to opioid-addicted patients, and for
additional expenses it incurred as a result of the opioid epidemic. We refer
to the first type of economic damages as “indirect” or “derivative” because
they are occasioned by the alleged inadequate compensation for patient
care, and the second type as “direct” because they are costs directly
incurred by TMC.
¶12 CVS argues that TMC’s claims for indirect damages are
foreclosed by Arizona’s medical lien statutes, and that the negligence
claims for direct damages fail because CVS lacks a requisite duty as a matter
of law. We address each argument in turn.
A. Arizona’s Medical Lien Statutes
¶13 TMC asserts it has been harmed by CVS’s improper
distribution of opioids, which fueled the opioid epidemic and foreseeably
caused damages for the costs of uncompensated care to treat opioid-
addicted patients. Although TMC contends the harm it suffered is direct,
TMC’s negligence-based claim for uncompensated patient care is actually
based, at most, on CVS’s infliction of harm on opioid-addicted patients,
rather than infliction of harm directly on TMC. Cf. In re
Tobacco/Governmental Health Care Costs Litig., 83 F. Supp. 2d 125, 126 (D.D.C.
1999) (dismissing the Republic of Guatemala’s claims to recover citizens’
health care costs because the alleged injury was derivative of the citizens’
injuries). Therefore, TMC’s direct claim against CVS results from an
indirect, derivative injury—the personal injuries to patients that resulted in
increased hospital treatment expenses. In essence, TMC seeks to stand in
the shoes of its patients to recover for the uncompensated care.
¶14 Arizona’s medical lien statutes, §§ 33-931 to -936, authorize
hospitals to impose a lien against “all claims of liability or indemnity . . . for
damages accruing to the person to whom the [hospital’s] services are
rendered . . . on account of the injuries that gave rise to the claims and that
required the services.” § 33-931(A). The medical lien statutes, accordingly,
govern claims for indirect damages and “extend to health care providers a
remedy not available under the common law—the ability to enforce a lien
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against those liable to the patient for damages in order to secure the
providers’ customary charges for care and treatment of an injured person.”
Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 195 ¶ 7 (2016)
(quoting Blankenbaker v. Jonovich, 205 Ariz. 383, 388 ¶ 22 (2003)). “The lien
shall be for the claimant’s customary charges for care and treatment or
transportation of an injured person.” § 33-931(A).
¶15 Arizona, however, prohibits assignment of personal injury
claims. See Allstate Ins. Co. v. Druke, 118 Ariz. 301, 303–04 (1978); State Farm
Fire & Cas. Co. v. Knapp, 107 Ariz. 184, 185 (1971). And TMC cannot
circumvent this rule by asserting a direct claim for uncompensated care
against a third party it contends caused personal injuries to its patients. See
United Food & Com. Workers Unions, Emps. Health & Welfare Fund v. Philip
Morris, Inc., 223 F.3d 1271, 1274 (11th Cir. 2000) (“The usual common law
rule is that a health-care provider has no direct cause of action in tort against
one who injures the provider’s beneficiary, imposing increased costs upon
the provider.”). To do so would create an end-run around the no-
assignment principle. See Allstate, 118 Ariz. at 304 (in rejecting assignment
of claims, the Court remarked that “[w]hatever the form, whatever the
label, whatever the theory, the result is the same”). Not insignificantly, it
would also deprive patients of the ability to successfully assert claims
against CVS.
¶16 Barred from pursuing a negligence claim against CVS to
recover indirect damages, TMC is limited to suing the patient or perfecting
and collecting on a statutory lien. The remedy provided by the medical lien
statutes is exclusive because those statutes “create[] a right and also
provide[] a complete and valid remedy for the right created.” See
Blankenbaker, 205 Ariz. at 387 ¶ 18 (quoting Valley Drive-In Theatre Corp. v.
Superior Court, 79 Ariz. 396, 400 (1955)). Absent coverage by the medical
lien statutes, a hospital may not assert a claim against a third party for
uncompensated patient care. In sum, TMC’s claims for uncompensated
care provided for patients’ injuries are barred. But because the lien statutes
do not displace TMC’s claims for direct damages, we next address whether
TMC can maintain its negligence claims to recover such damages. See
§ 33-931(C) (“The lien entitlements authorized by subsection A of this
section and the assignment authorized by subsection B of this section are
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applicable to all customary charges by hospitals or ambulances of political
subdivisions.” (emphasis added)).
B. Duty
¶17 TMC’s negligence claims for direct damages similarly fail
because CVS does not owe a duty to TMC under the facts alleged.
¶18 “To establish a defendant’s liability for a negligence claim, a
plaintiff must prove: (1) a duty requiring the defendant to conform to a
certain standard of care; (2) breach of that standard; (3) a causal connection
between the breach and the resulting injury; and (4) actual damages.”
Quiroz v. ALCOA Inc., 243 Ariz. 560, 563–64 ¶ 7 (2018). We determine
whether a legal duty exists without considering the case-specific facts
concerning breach and causation. Id. at 564 ¶ 7.
¶19 In Quiroz, we outlined Arizona’s duty framework. First, duty
is not presumed, and the plaintiff has the burden of establishing its
existence. Id. at 563 ¶ 2. Second, foreseeability is not a factor in determining
duty. Id. (citing Gipson v. Kasey, 214 Ariz. 141, 144 ¶ 15 (2007)). Third, duty
is based on common law special relationships or relationships created by
public policy. Id. Finally, the sources for identifying public policy are state
and federal statutes and the common law. Id.¶20 “[S]pecial relationships [are] recognized by the common law,
contracts, or ‘conduct undertaken by the defendant.’” Id. at 565 ¶ 14
(quoting Gipson, 214 Ariz. at 145 ¶¶18–19). As a threshold matter here, CVS
does not have a special relationship with TMC. In such circumstances,
absent clearly expressed public policy, we do not find a duty flowing from
one to the other.
¶21 “[W]e exercise great restraint in declaring public policy,”
which is ordinarily the prerogative of the legislative bodies. Id. at 566 ¶ 19.
“Public policy creating a duty is based on our state and federal statutes and
the common law . . . [,] specifically, case law and Restatement sections
consistent with Arizona law.” Id. at 565 ¶ 15, 567 ¶ 20. Statutes “create a
duty when a plaintiff ‘is within the class of persons to be protected by the
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statute and the harm that occurred . . . is the risk that the statute sought to
protect against.’” Id. at 565 ¶ 15 (quoting Gipson, 214 Ariz. at 146 ¶ 26).
¶22 TMC contends that CVS’s duty derives from public policy.
Specifically, it argues that federal and state statutes, including the
Controlled Substances Act (“CSA”) (21 U.S.C. § 801 et seq.), the Arizona
Uniform Controlled Substances Act (“AUCSA”) (A.R.S. § 36-2501 et seq.),
and the Arizona Opioid Epidemic Act (“AOEA”) (S.B. 1001, 53rd Leg., 1st
Spec. Sess. (Ariz. 2018)), establish that CVS owed a duty of care to TMC.
However, there is no legally cognizable duty, public policy-based or
otherwise, that would allow TMC to assert a negligence claim against CVS.
¶23 Public policy does not establish a duty from CVS to TMC.
TMC relies on statutes prohibiting the distribution of prescription drugs,
such as the CSA and AUCSA, to establish a public policy-based duty to
hospitals. 2 But the class protected by those statutes is prescription-drug
users, not hospitals. The CSA and AUCSA, for example, were enacted to
combat drug abuse and control the traffic of controlled substances. See
Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 124 ¶ 22 (2015) (“The manifest
purpose of the CSA was ‘to conquer drug abuse and to control the
legitimate and illegitimate traffic in controlled substances.’” (quoting
Gonzales v. Raich, 545 U.S. 1, 12 (2005))); Unif. Controlled Substances Act
prefatory note (Unif. L. Comm’n 1994). The CSA (and the AUCSA by
extension) protect “individual members of the public from falling victim to
drug misuse and abuse.” See In re Nat’l Prescription Opiate Litig., 452 F.
Supp. 3d at 788. Indeed, TMC acknowledges that the CSA’s and AUCSA’s
overall objective is to protect against addiction, overdose, and death as a
result of drug abuse. But TMC is a hospital. And a hospital cannot suffer
from addiction, overdose, and death, and thus does not fall within the class
of persons meant to be protected. See Gipson, 214 Ariz. at 146 ¶¶ 25–26; In
2TMC further relies on Kromko v. Arizona Board of Regents, 149 Ariz. 319, 321
(1986), to find a duty based on public policy. However, Kromko does not
discuss duty. Although Kromko supports the proposition that a public or
nonprofit hospital serves a public purpose, this conclusion was regarding
the Gift Clause in article 9, section 7 of the Arizona Constitution. 149 Ariz.
at 321.
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re Nat’l Prescription Opiate Litig., 452 F. Supp. 3d at 788 (“West Boca, a
hospital system, is not an ‘individual member of the public’ that could fall
victim to drug misuse and abuse. West Boca is not an intended beneficiary
of the CSA.”). Nor is the economic harm here of the type that the CSA and
AUCSA are intended to protect against. See In re Nat’l Prescription Opiate
Litig., 452 F. Supp. 3d at 788; H.B. 2157, 34th Leg., 1st Reg. Sess. (Ariz. 1979)
(adopting the AUCSA); Unif. Controlled Substances Act prefatory note
(Unif. L. Comm’n 1994).
¶24 For the same reasons, TMC’s reliance on the AOEA is
misplaced. The AOEA is intended to help Arizona address the opioid crisis
and prescription-drug users affected by it. See S.B. 1001, 53rd Leg., 1st Spec.
Sess. (Ariz. 2018); Ariz. State Senate Fact Sheet for S.B. 1001, 53rd Leg., 1st
Spec. Sess. (Jan. 26, 2018). The AOEA contains provisions affecting
hospitals, such as: establishing requirements for prescribing, administering,
and dispensing schedule II opioids; adding criminal penalties for
violations; and requiring hospitals that offer substance abuse treatment to
adhere to reporting requirements and to refer overdose patients to behavior
health service providers. See A.R.S. §§ 13-2310; 36-109, -407, -2525, -2606.
However, notwithstanding the AOEA’s impact on hospitals, it did not
create a duty flowing from pharmacies to hospitals.
¶25 TMC next argues that the medical lien statutes support a
public policy-based duty from CVS to TMC. As the trial court recognized,
the medical lien statutes demonstrate “a public policy in favor of seeking to
compensate a hospital that’s providing medical care for a party who cannot
pay in the community.” However, the medical lien statutes do not regulate
conduct, as would be necessary to establish a duty. See Lips v. Scottsdale
Healthcare Corp., 224 Ariz. 266, 268 ¶ 10 (2010). “Generally, a cause of action
for negligence arises from a duty, a determination that a person is required
to conform to a particular standard of conduct.” Id.; Gipson, 214 Ariz. at 143
¶ 10. These statutes do not attempt to regulate conduct in any way but
instead provide an avenue for hospitals to recoup customary patient
charges. See, e.g., Gipson, 214 Ariz. at 147 ¶ 32 (finding a duty of care based
on statutes prohibiting distribution of prescription drugs); Estate of
Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 255–56 (1994) (finding a duty
of care based on laws prohibiting furnishing alcohol to minors). The
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medical lien statutes cannot be used by TMC to establish a public policy-
based duty from a pharmacy to a hospital.
¶26 TMC also seeks support from 42 U.S.C. § 1395dd(a) and (b),
which requires hospitals to provide necessary medical screening and
stabilizing treatment to patients suffering emergency medical conditions.
But that requirement does not establish a duty between a pharmacy and
hospital. Although that requirement arguably places a hospital at risk of
incurring additional expenses, any claim to recoup such expenses belongs
to the hospital to assert against the patient. It does not provide a right to
assert claims against third parties, such as pharmacies.
¶27 Finally, TMC’s pursuit of economic damages is precluded
because TMC cannot recover for purely economic harm absent some
“special reason” justifying finding a duty to avoid economic harm. See Lips,
224 Ariz. at 268 ¶¶ 10–11. This Court has recognized a duty based on
purely economic loss only in a limited number of circumstances, such as in
“particular professional and business relationships.” See id. at ¶¶ 11–12
(stating that “[c]ourts have not recognized a general duty to exercise
reasonable care for the purely economic well-being of others” in order to
“avoid imposing onerous and possibly indeterminate liability on
defendants”). And TMC cites no cases allowing a negligence claim against
a third party for purely economic loss.
¶28 Here, no “special reason” exists to impose a duty on CVS to
avoid economic harm to TMC. TMC urges us to recognize an exception for
the “closed system” in the pharmaceutical industry that is designed to
protect against improper distribution and prescription-drug abuse, but we
are not empowered to create such an exception absent a clear public policy
directive, nor can we fathom the applicability and limits of such an inchoate
doctrine based upon the arguments presented.
¶29 We recognize the tremendous costs imposed by the opioid
crisis on society generally, and hospitals specifically. Jennifer Bresnick,
Hospitals Face Higher Costs, More ED Visits from Opioid Abuse, Health IT
Analytics (Dec. 21, 2016), https://healthitanalytics.com/news/hospitals-
face-higher-costs-more-ed-visits-from-opioid-abuse. The human costs are
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tragic. However, it is for Congress and the legislature, not the courts, to
create methods to alleviate those costs. Arizona law neither imposes nor
supports the imposition of a duty from pharmacies to hospitals under the
facts of this action.
III. CONCLUSION
¶30 For the foregoing reasons, we reverse the trial court’s ruling
denying CVS’s motion to dismiss TMC’s negligence claims (Counts 3, 4, 5,
and 7). We remand the case to the trial court to dismiss the negligence-
based claims and for further proceedings on the remaining public nuisance
and unjust enrichment claims.