An Eastern District judge has dismissed charges accusing a Long Island doctor of overprescribing opioid painkillers.

Dr. Michael Belfiore

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But Michael Belfiore, a doctor of osteopathy (D.O.), does not owe the dismissal to his novel defense that big pharmaceutical companies that deceived doctors and the public about the safety of their drugs are responsible.

Rather, Judge Joseph Bianco, sitting in Central Islip, ruled Friday from the bench that the indictment’s failure to include necessary statutory elements—namely that Belfiore prescribed the medication “without a legitimate medical purpose”—warranted dismissal without prejudice of the multiple counts against Belfiore of illegally distributing oxycodone, according to Belfiore’s lawyer, Thomas Liotti.

A spokesman for the Eastern District U.S. Attorney’s office in Brooklyn confirmed that the judge dismissed the indictment because of a lack of specific language, but he said the office intends to file a new indictment.

Liotti said that though federal prosecutors may present the case to a new grand jury, they may have no more success than they had this go-around.

Thomas Liotti

Rick Kopstein/ALM

“This is a major breakthrough which signals the weaknesses in the government’s case,” he said in a statement. “The government and Big Pharma created this opioid crisis, not my client.”

Belfiore allegedly prescribed nearly 3,700 pain pills to three separate patients from September 2011 to August 2013, ranging from 248 to 2,910 pills per patient. Belfiore, of Bellmore, practices general family medicine and dermatology in Merrick, according to the superseding indictment.

Liotti argued that he could not be guilty of prescribing the medication “without a legitimate medical purpose” when his prescribing practice aligned with the message sent by drug manufacturers—that their painkillers could be prescribed non-addictively.

And it’s an argument that may gain traction in light of the growing wave of plaintiffs lawyers joining state and local governments in filing lawsuits against big pharmaceutical companies blaming them for the prescription opioid addiction epidemic and trying to recover taxpayer funds spent dealing with it.

On June 15, the plaintiffs firm Simmons Hanly Conroy filed a lawsuit against pharmaceutical manufacturers on behalf of Schenectady County. It is the eighth New York county in less than a year to go after Big Pharma for its alleged role in the epidemic ravaging the nation.

Belfiore has moved to intervene in the state civil case brought by Suffolk County, arguing that his complaint is “nearly identical” to the plaintiff-county’s. That motion is pending.