A Delaware judge has blocked an attempt by a contingent of leading pharmaceutical manufacturers and distributors to escape a civil lawsuit by the state, which seeks to hold the companies liable for their alleged role in the ongoing opioid epidemic.
Superior Court Judge Mary M. Johnston said in a 41-page opinion that Attorney General Kathy Jennings’ office had supported the state’s allegations in the lawsuit, which accused the firms, including Purdue Pharma L.P. and Endo Pharmaceuticals Inc., of misleading the public about the dangers associated with painkillers.
Johnston, however, tossed similar claims for negligence and consumer fraud against CVS Health Corp. and Walgreens Boots Alliance Inc. for supposedly allowing the drugs to be misused, finding that the allegations were “entirely speculative and conclusory.”
The ruling, issued late Monday afternoon, sets up the next stage in the high-profile litigation, which was filed by former Attorney General Matt Denn last January. Denn’s office had accused the pharmacies and opioid manufacturers and distributors in a 124-page complaint of using deceptive marketing tactics to increase opioid sales and allowing painkillers to be diverted for unapproved purposes. Jennings succeeded Denn in office last month.
The suit seeks compensatory damages to reimburse the state for the cost of battling the crisis through health care, the criminal justice system, social services, welfare and education systems.
According to the lawsuit, the drugmakers purposely downplayed the potential for addiction to opioids and trained salespeople to tell doctors that the risk of addiction “less than one percent.”
However, when patients began to show signs of addiction to the drugs, the suit alleges, Purdue began to publicly push the idea that they were instead suffering from untreated pain that required additional opioids. The state said the so-called “pseudoaddiction” repeatedly appeared in Purdue’s marketing materials, despite having no basis in scientific research.
In the complaint, the sate said 694 opioid-related deaths occurred in Delaware between 2007 and 2016, with 112 occurring in 2016 alone. The epidemic also caused $100 million per year in state resources to be redirected to pay for criminal prosecutions, education and social support systems, the complaint said.
The lawsuit also cited statistics showing that, each year, more than 50 opioid pills are shipped into Delaware for every man, woman and child living in the state. When limited to the number of residents who have taken opioids, that number jumps to approximately 440 pills per person every year, the complaint said.
According to the lawsuit, the massive market for prescription opioids has led to abuses by distributors and pharmacies, who allowed the drugs to escape the legitimate supply chain and flow into illegal channels of distribution by filling false prescriptions and accommodating alarmingly high requests for pills.
Purdue and Endo moved to dismiss the case in May, arguing that the claims were pre-empted by federal law. Attorneys for the companies said they had complied with U.S. Food and Drug Administration labeling requirements, and that the state could not impose a duty to alter FDA-approved medicine.
The distributors, which include McKesson Corp., Cardinal Health Inc., AmeriSourceBergen Corp., Anda Pharmaceuticals Inc. and H.D. Smith, argued that Delaware could not recover damages for individuals who had been injured by opioid addiction and that they had no duty to halt suspicious orders or report them to the state.
Johnston, however, ruled that the state had met the low pleading bar to allow claims against the manufacturers to proceed. As to the distributors, she said it was not yet clear whether the firms had complied with relevant federal regulations, but it was possible the companyies could be liable for downstream diversion if the misconduct was “reasonably foreseeable” at the time.
According to Johnston’s opinion, the state had fallen short of supporting claims for civil conspiracy against the firms, but those allegations could be renewed if further evidence were to surface during discovery. She also dismissed with prejudice claims for nuisance and unjust enrichment.
Carl Kanefsky, a spokesman for Jennings, said “while we are studying and considering all parts of this opinion, it importantly continues the state’s potential ability to hold the pharmaceutical industry accountable for the devastating opioid crisis and we will continue to pursue that.”