On July 21, 2026, the Missouri Court of Appeals found that BatesCarey’s clients, Aspen Insurance UK Ltd. and Old Colony State Insurance Company, owe no coverage for over $1 billion in opioid liabilities faced by one of the nation’s largest opioid manufacturers, Mallinckrodt, given that Mallinckrodt’s “unbranded marketing” that promoted the use of opioids without naming any specific product is still conduct that falls within the Products Completed Operations Hazard (PCOH) provisions, which precludes coverage for such claims. Aspen and Old Colony were represented by BatesCarey counsel Adam Fleischer, Justin Seigler, and Clay Goldman. 

Mallinckrodt was one of the nation’s largest manufacturers of opioids and opioid ingredients used by other manufacturers. After Mallinckrodt was faced with thousands of opioid lawsuits beginning in 2017, Mallinckrodt eventually sought bankruptcy protection from what it believed to be billions of dollars in potential tort liability owed to governments and individuals having suffered losses from the opioid epidemic that Mallinckrodt helped create. Through resolution of the bankruptcy, a Trust was created to seek indemnity from Mallinckrodt’s insurers for the opioid liabilities that had been discharged. The Trust filed suit seeking such insurance recoveries. 

The Trust recognized that many of Mallinckrodt’s historic primary insurance policies contained a PCOH exclusion that precluded coverage for injuries “arising out of” Mallinckrodt’s sales of and representations about its opioid products. Relatedly, Mallinckrodt’s pre-2017 umbrella and excess policies only provided PCOH coverage if such claims were first made against Mallinckrodt and reported to the insurer during a policy’s period. None of the thousands of opioid claims filed against Mallinckrodt were first made or reported during any of the policy periods at issue. In other words, if Mallinckrodt’s liabilities fell within the PCOH provisions, they would not be covered.

In an attempt to create coverage, the Trust argued that Mallinckrodt’s liabilities did not necessarily all arise from individuals who had ingested a Mallinckrodt product. The Trust argued that Mallinckrodt was alleged to have engaged in “unbranded marketing,” whereby Mallinckrodt promoted to the public the use of opioids in general in a fashion that changed the medical standard for prescribing and that created a national opioid market from which its sales thrived. It was alleged that “unbranded marketing” made Mallinckrodt liable for some public harm that resulted from people having been driven to opioids that were manufactured and sold by other companies and eventually even some harm resulting from people who were driven to illicit heroin use. The Trust argued that these liabilities traced to opioids that were not sold by Mallinckrodt constituted liabilities that fall outside of the PCOH provisions and therefore must be insured.

The Missouri Court of Appeals ruled that to the extent that Mallinckrodt’s “unbranded marketing” of opioids resulted in Mallinckrodt’s alleged liability for members of the public that ingested the pills of other companies or illicit heroin, such liability still “grew out of” or “originated from” Mallinckrodt’s conduct in successfully marketing and selling its own opioids and opioid ingredients. Because even the “unbranded marketing” allegations were part of Mallinckrodt’s successful efforts to have flooded the market with its own opioids, the resulting injuries and liabilities fell within the PCOH provisions of the policies. In other words, the PCOH liability was excluded by the primary policies, and the PCOH liability was not covered by the umbrella and excess policies, given that the PCOH claims made and reported provisions were not satisfied.