HOSPITAL AUTHORITY OF WAYNE COUNTY v. AMERISOURCEBERGEN DRUG CORPORATION ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: August 21, 2023
S23Q0486. HOSPITAL AUTHORITY of WAYNE COUNTY v.
AMERISOURCEBERGEN DRUG CORPORATION, et al.
MCMILLIAN, Justice.
The United States District Court for the Northern District of
Ohio (the “District Court”) has certified two questions to this Court
regarding whether a state entity can continue asserting claims
against opioid manufacturers and distributors after the State of
Georgia entered into a settlement with the pharmaceutical
companies, and as part of the settlement, the General Assembly
enacted OCGA § 10-13B-1, et seq. (the “Settlement Act”) in 2022,
which includes a litigation preemption provision that “bar[s] any
and all past, present or future claims on behalf of any governmental
entity seeking to recover against any business or person that is a
released entity under the terms of the relevant settlement.” OCGA
§ 10-13B-3 (a) (the “preemption provision”).
On April 16, 2019, before Georgia entered into the state-wide
settlement with the pharmaceutical companies, the Hospital
Authority of Wayne County, Georgia (“HAWC”) filed suit against a
number of such entities, seeking to recover unreimbursed amounts
it claims to have expended in treating opioid-dependent patients.
See Hosp. Auth. of Wayne County, Ga. v. Purdue Pharma, L.P. et al.,
Case No. 1:19-OP-45278 (N.D. Ohio). HAWC subsequently chose not
to participate in the state-wide settlement and has not individually
released any of its claims. At some point, HAWC’s litigation was
consolidated, along with over 3,000 other cases, into a federal
multidistrict litigation in the District Court. See In re Natl.
Prescription Opiate Litigation, (MDL No. 2804).
On October 12, 2022, seven defendants named in HAWC’s
complaint filed a motion to dismiss HAWC’s claims against them
(the “Motion”), contending that the suit is barred by the preemption
provision. 1 HAWC opposed the Motion, arguing that the Settlement
1 The Motion identifies the movants as Johnson & Johnson, Janssen
Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc., Janssen
2
Act, and in particular, the preemption provision, is unconstitutional
because it takes away HAWC’s right to pursue its already-filed
lawsuit and thus violates the Georgia Constitution’s prohibition
against retroactive laws. See Ga. Const. of 1983, Art. I, Sec. I, Par.
X (“Paragraph X”).2 As required by Fed. Rule Civ. P. 5.1,3 HAWC
served a copy of its opposition brief on the Attorney General for the
State of Georgia, and the District Court invited the Attorney
General to intervene in the proceedings on the motion. The Attorney
General responded by letter, declining to intervene at that time but
requesting that the District Court certify two questions to this Court
Pharmaceutica, Inc., AmerisourceBergen Corporation, McKesson Corporation,
and Cardinal Health, Inc., “as well as any other Released Entities, as that term
is defined in the Settlement Agreements, that have been named as defendants
in the Complaint.” The movants will be referred to collectively herein as the
“Settling Defendants.”
2 Although OCGA § 10-13B-3 (b) provides that the preemption provision
shall not apply “to a bellwether claim of any governmental entity” that meet
certain criteria, the parties agree that HAWC’s litigation has not been
identified as a bellwether claim for any purpose.
3 Fed. Rule Civ. P. 5.1 (a) requires that a party who files a pleading
“drawing into question the constitutionality of a . . . state statute” must file a
notice of the constitutional challenge and serve the notice on the state attorney
general. Under Fed. Rule Civ. P. 5.1 (b), the federal court “must, under 28
U.S.C. § 2403, certify to the appropriate attorney general that a statute has
been questioned,” and the attorney general is given 60 days in which to
intervene in the action. See Fed. Rule Civ. P. 5.1 (c).
3
concerning the preemption provision’s constitutionality and
HAWC’s authority to challenge it. The District Court certified the
following two questions to this Court by order dated December 27,
2022:
(1) Does [HAWC] have the legal authority to challenge the
constitutionality of OCGA § 10-13B-1, et seq.? and
(2) Does Article I, Section I, Paragraph X of the Georgia
Constitution prohibit [the preemption provision’s] bar of past,
present and future claims by governmental entities?
1. Turning to the first question, we consider whether HAWC
has the legal authority to challenge the preemption provision on the
grounds that it violates the bar against retroactive laws in
Paragraph X. The preemption provision reads:
Entry into a state-wide opioid settlement agreement shall
serve to bar any and all past, present or future claims on
behalf of any governmental entity seeking to recover
against any business or person that is a released entity
under the terms of the relevant settlement. Such bar shall
apply to any and all released claims or suits by any
governmental entity created by or pursuant to an Act of
the General Assembly, the Constitution, or any
department, agency, or authority thereof, for damages,
4
abatement, injunctive or any other relief. No such claim
barred by this Code section shall be brought, threatened,
asserted or pursued in any way in any court, and any such
claim shall be dismissed by the court in which the claim
is brought.
OCGA § 10-13B-3 (a). In construing this provision, “we must afford
the statutory text its plain and ordinary meaning, we must view the
statutory text in the context in which it appears, and we must read
the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.” Domingue v. Ford
Motor Co., 314 Ga. 59, 61 (2) (875 SE2d 720) (2022) (citation and
punctuation omitted). “When looking for the commonly understood
meaning of a word in statutory text, we generally look to dictionaries
and, if relevant, legal dictionaries from the time the statute was
passed.” Raffensperger v. Jackson, __ Ga. __, ___ (4) (b) n.1 (888
SE2d 483) (2023).
Here, it is undisputed that HAWC is a “governmental entity”
and the Settling Defendants are each considered a “released entity”
under the Settlement Act. See OCGA § 10-13B-2 (1) (A)
(“Governmental entity” includes “This state and each of its
5
departments, agencies, divisions, boards, commissions, authorities,
and instrumentalities”); OCGA § 10-13B-2 (3) (“‘Released entity’
means an entity against which a claim has been released under a
state-wide opioid settlement agreement.”); OCGA § 31-7-72 (a)
(“There is created in and for each county and municipal corporation
of the state a public body corporate and politic to be known as the
‘hospital authority’ of such county or city . . . .”).
Given that the parties are covered by the Settlement Act, the
text of the preemption provision could not be plainer: any and all
past, present, and future claims by any governmental entity under
the Settlement Act are barred. See OCGA § 10-13B-3 (a). This bar
applies to “any and all released claims and suits”4 under the
Settlement Act brought “by any governmental entity created by or
pursuant to an Act of the General Assembly,” for damages or any
other relief.5 Id. (emphasis added). And no such barred claims “shall
4 A “released claim” is defined as “a claim by a governmental entity that
has been or could have been released under a state-wide opioid settlement
agreement.” OCGA § 10-13B-2 (2).
5 HAWC asserted in its filings in this Court and the District Court that
it is seeking to recover damages it suffered as a result of the opioid epidemic.
6
be brought, threatened, asserted or pursued in any way in any
court.” Id. (emphasis added). The Settlement Act was adopted in
2022, and the plain meaning of “pursue” as defined, for example, in
the Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/pursue, includes “to find or employ
measures to obtain or accomplish” and “to follow up or proceed with.”
And in the applicable legal context, the word “pursue” is defined to
include “[t]o try persistently to gain or attain” and “[t]o prosecute or
sue,” using the example “to pursue for damages.” Black’s Law
Dictionary (11th ed. 2019) (second and sixth definitions of “pursue”).
HAWC’s opposition to the Motion is part of the authority’s persistent
effort to sue the Settling Defendants for damages, to gain or attain
a ruling on the merits of those claims, and to follow up on the filing
of those claims. We thus conclude that HAWC’s assertion of its
constitutional rights is a way of pursuing such claims and is barred
under the text of the preemption provision, unless some legal
principle prohibits its application to HAWC.
HAWC acknowledges that as a hospital authority, it was
7
established pursuant to OCGA § 31-7-72 and that its functions and
powers are derived from OCGA § 31-7-75. However, HAWC asserts
that it has the authority to raise its constitutional challenge to the
preemption provision because OCGA § 31-7-75 gives it the power to
sue and be sued, see OCGA § 31-7-75 (1), and “[t]o exercise any or
all powers now or hereafter possessed by private corporations
performing similar functions,” see OCGA § 31-7-75 (21). Therefore,
HAWC contends that while a county or city generally may not have
the legal authority to assert a constitutional challenge to an act of
the legislature, 6 a hospital authority does, see Caldwell v. Hosp.
6 This Court has recognized that, “[a] public entity created by the
legislature generally cannot bring constitutional challenges to legislative acts,”
Ga. Insurers Insolvency Pool v. Hulsey Environmental Svcs., 293 Ga. 504, 505
(748 SE2d 380) (2013), and thus, for example, “[a] county or municipal
corporation, created by the legislature, does not have standing to invoke the
equal protection and due process clauses of the state or federal Constitution in
opposition to the will of its creator.” City of Atlanta v. Spence, 242 Ga. 194, 195
(1) (249 SE2d 554) (1978). See also City of Columbus v. Ga. Dept. of Transp.,
292 Ga. 878, 882 n.1 (742 SE2d 728) (2013) (municipality had no authority to
pursue a due process claim); Bibb County v. Hancock, 211 Ga. 429, 441 (3) (86
SE2d 511) (1955) (“Neither counties nor municipal corporations . . . . [are]
persons as against the State within the meaning of the constitutional provision
guaranteeing due process to all persons.”); V. C. Ellington Co. v. City of Macon,
177 Ga. 541, 544 (170 SE 813) (1933) (“[A] municipal corporation, created by a
state for the better ordering of government, has no privileges or immunities
under the [federal or state constitutions] which it may invoke in opposition to
8
Auth. of Charlton County, 248 Ga. 887 (287 SE2d 15) (1982), and
that the General Assembly is prevented from subsequently passing
legislation taking away that authority under OCGA § 31-7-96, which
provides that “insofar as this article may be inconsistent with any
other law, whether by charter of any political subdivision of the state
or otherwise, this article shall be controlling.” 7
We do not see Caldwell as dispositive here. In Caldwell, the
Employment Security Agency of the Department of Labor
determined that the hospital authority was required to reimburse
the agency for a portion of unemployment benefits paid to a former
the will of its creator.” (citation and punctuation omitted)). However, this Court
also stated in Spence that “[t]his does not mean that the city [or county] does
not have standing to raise other constitutional questions concerning the
statute attacked by them.” 242 Ga. at 196 (1). Because we resolve the question
of HAWC’s authority to challenge the preemption provision based on the
Settlement Act’s specific provisions governing governmental entities, we need
not decide whether as a general matter, state-established entities such as
hospital authorities may bring a constitutional challenge under Paragraph X
to legislative acts.
7 However, at oral argument, HAWC conceded that the General
Assembly could have amended OCGA § 31-7-75 and taken away its authority
to pursue the lawsuit, but argued that the General Assembly could not pass
another statute that would accomplish the same thing because that would
violate OCGA § 31-7-96.
9
employee. The hospital authority appealed to the superior court,
which held that applying certain provisions of Georgia’s
employment securities laws to the hospital authority would result
in a violation of due process. See Caldwell, 248 Ga. at 888 (1).
Relying on an earlier version of OCGA § 31-7-75 (21), 8 granting a
hospital authority the powers possessed by private corporations
performing similar functions, this Court held that because a private
corporation could bring a constitutional challenge against a statute,
the hospital authority in that case “ha[d] been granted standing by
statute to attack the Employment Security Law on the grounds that
it violates the due process and equal protection clauses of the
Georgia Constitution.” Id. 9 See also Hulsey Environmental, 293 Ga.
at 505-06 (stating that this Court has “recognized an exception” to
8 Former Ga. Code Ann. Code Ann. § 88–1805 (s) authorized hospital
authorities “to exercise any or all power now or hereafter possessed by private
corporations performing similar functions.” See Caldwell, 248 Ga. at 888 (1).
9 Some of the Justices question whether this Court correctly concluded
that granting a hospital authority the same powers possessed by private
corporations means that they are also considered persons with rights to due
process and equal protection, as Caldwell held, but we do not need to resolve
that issue here in order to respond to the questions certified by the District
Court.
10
the general rule that counties and municipal corporations cannot
challenge legislative acts “when the legislature explicitly endows a
public entity with power ‘possessed by private corporations
performing similar functions’”) (quoting Caldwell, 248 Ga. at 888(1)).10 Thus, Caldwell’s conclusion that the hospital authority could
assert due process and equal protection challenges to a state statute
was based solely on the statutory authority given to the authority
under OCGA § 31-7-75.
But Caldwell does not address the principle that as a
governmental entity created by the state legislature, a hospital
10 We note that although Hulsey Environmental acknowledged the
holding in Caldwell, it did not follow Caldwell, but rather distinguished it. The
Court determined that “the legislature did not give GIIP [the Georgia Insurers
Insolvency Pool] the broad powers possessed by private corporations.” Hulsey,
293 Ga. at 506 (citation and punctuation omitted). On the contrary, this Court
determined that “the power to sue and be sued was given only to enable GIIP
to bring and defend legal actions pertaining to its statutory functions and
duties.” Id.; OCGA § 33-36-6 (a) (“[GIIP] is a nonprofit legal entity with the
right to bring and defend actions and such right to bring and defend actions
includes the power and right to intervene as a party before any court in this
state that has jurisdiction over an insolvent insurer as defined in this
chapter.”). Therefore, the Court held that GIIP lacked standing to bring its
constitutional challenge. Compare Jekyll Island-State Park Auth. v. Jekyll
Island Citizens Assn., 266 Ga. 152, 152 (1) (464 SE2d 808) (1996) (citing
Caldwell and holding, without analysis, that the authority had standing to
bring a vagueness challenge to a statute).
11
authority has “no inherent power; it may only exercise power to the
extent it has been delegated authority by the state.” H. G. Brown
Family Ltd. Partnership v. City of Villa Rica, 278 Ga. 819, 819 (1)
(607 SE2d 883) (2005) (analyzing the powers of a municipality). See
Koehler v. Massell, 229 Ga. 359, 361-62 (3) (191 SE2d 830) (1972)
(“[C]reatures of the legislature . . . . possess only such powers as are
expressly delegated to them by the legislature. They possess no
inherent powers.”); Cox Enterprises, Inc. v. Carroll City/County
Hosp. Auth., 247 Ga. 39, 43-46 (273 SE2d 841) (1981) (determining
that a hospital authority is a governmental entity); McLucas v. State
Bridge Bldg. Auth., 210 Ga. 1, 6 (1) (77 SE2d 531) (1953) (state
authority is “a mere creature of the State”). And the legislature
retains the authority to expand, diminish, or withdraw the powers
granted to such an entity. See Signa Dev. Corp. v. Fayette County,
259 Ga. 11, 12 (2) (375 SE2d 839) (1989) (For entities that “are
creatures of the legislature, . . . their existence may be established,
altered, amended, enlarged or diminished, or utterly abolished by
the legislature.”) (citation and punctuation omitted); Town of
12
McIntyre v. Scott, 191 Ga. 473, 475 (40 (12 SE2d 883) (1941)
(“[C]ities and towns in their governmental powers are creatures of
the legislature, and such powers are subject to change from time to
time at the will of their creator.”); Hogg v. City of Rome, 189 Ga. 298,
303-304 (3) (6 SE2d 48) (1939) (A city “is a creature of the
legislature, and its powers may be enlarged or diminished from time
to time, at the will of its creator.”); Churchill v. Walker, 68 Ga. 681,
686 (1882) (Because a city is a “creature of the general assembly[,
t]hat creative power may dissolve, modify, or limit its corporate
powers at will.”).
Moreover, to the extent that OCGA § 31-7-75 and the
preemption provision could be read as conflicting, the canons of
statutory construction dictate that the more recent and specific
provisions of the Settlement Act govern over the older and more
general provisions of OCGA § 31-7-75. See Bellsouth
Telecommunications, LLC v. Cobb County, 305 Ga. 144, 151 (1) (824
SE2d 233) (2019) (“Where two statutes are in conflict the later-
enacted statute prevails over the one enacted earlier, and the more
13
specific statute governs over the more general one.”). Despite
HAWC’s reliance on OCGA § 31-7-96, that provision does not
prevent the General Assembly from later passing the Settlement Act
and limiting or eliminating HAWC’s power to pursue certain legal
claims under the General Assembly’s authority to delegate to or take
away power from a state entity. And the General Assembly made
plain its intent that the Settlement Act was to alter previously
passed legislation in Section 3 of the Act as enacted, which provides
that “[a]ll laws and parts of laws in conflict with this Act are
repealed.” Ga. L. 2022, p. 178, § 3. Thus, we conclude that the
General Assembly’s passage of the preemption provision took away
any power HAWC otherwise may have had under OCGA § 31-7-75
to pursue claims that the preemption provision and the Settlement
Act are unconstitutional, and the answer to the first question
certified by the District Court is no. 11
2. In light of our answer to the first certified question, we need
11 Our holding in this case is limited to the preemption provision’s
application to governmental entities as defined by the Settlement Act, as that
is the question before us.
14
not answer the second certified question.
Certified questions answered. All the Justices concur, except
Boggs, C. J., not participating and Pinson, J., disqualified.
15