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State ex rel. Jennings v. Purdue Pharma L.P.

Superior Court of Delaware

September 25, 2019

STATE OF DELAWARE, ex rel. KATHLEEN JENNINGS, Attorney General of the State of Delaware, Plaintiff,
v.
PURDUE PHARMA L.P.; PURDUE PHARMA INC.; THE PURDUE FREDERICK COMPANY; ENDO HEALTH SOLUTIONS INC.; ENDO PHARMACEUTICALS INC.; MCKESSON CORPORATION; CARDINAL HEALTH INC.; AMERISOURCEBERGEN CORPORATION; ANDA PHARMACEUTICALS, INC.; H.D. SMITH, LLC; CVS HEALTH CORPORATION; and WALGREENS BOOTS ALLIANCE, INC., Defendants.

          Submitted: September 4, 2019

         On The State of Delaware's Motion for Reargument

          ORDER

          MARY M. JOHNSTON, JUDGE

         1. On August 1, 2019, the Court heard argument on Defendant Walgreens' Motion to Dismiss the First Amended Complaint. At the conclusion of the hearing, the Court ruled:

[T]he first amended complaint appears to have cured those speculative and conclusory allegations with a sufficient amount of additional factual specificity for pleading purposes at the motion to dismiss stage....What I am looking at next is the very unique and also precise affidavit of merit requirement set forth in in 18 Delaware Code Section 6853. I do find that the affidavit of merit was timely filed.
I'm looking now at Section C, which are the requirements of the affidavit of merit. And as I have stated, although the affidavit of merit was filed under seal and I am not going to reveal any information which should not properly be unsealed, I have reviewed the affidavit of merit and the accompanying curriculum vitae of the affiant.
The affidavit of merit talks about harm suffered by the State and the growing problem of diversion of opioids within Delaware. It states that the diversion of opioids results in a variety of social ills associated with opioid addiction resulting in additional cost to the healthcare system, justice system, social services, welfare and education system.
None of these are specific physical injuries to individuals. The statute requires that the affidavit state that each named defendant has breached the standard of care and that the breach was a proximate cause of injury or injuries claimed in the complaint.
I read that statute as requiring that there be a specific injury to a specific person. Now that injury may not be necessarily be physical. For example, a case has been cited to me in which the injury was a result of the breach of confidentiality, which was a breach of a duty of professional care to maintain confidentiality. So it doesn't necessarily have to be a physical injury.
On the other hand, it must be an injury to an individual patient. And the affidavit of merit fails to make the proximate cause link between any of the breaches of duties and any specific injury. [An injury only] to the State [itself], is a new cause of action that appears to the Court to be without precedent.
Even the case in which a pharmacy was sued and the individual pharmacist was not sued, . .. did not appear to sound in medical negligence. It appeared to sound in common law negligence.
Cases in which an entity is sued are cases in which, for example, a hospital is brought in as an individual - or as" an additional defendant or maybe as the sole defendant. But in those cases, the hospital is always acting in a respondent superior capacity, for example, they failed to supervise the physician. And, in those cases, the allegations include the physician or nurse or technician the hospital failed to train or supervise, and they also state the resulting injury.
So what I find now is that the affidavit of merit creates a new broad cause of action, which to my knowledge has not been recognized by this Court, certainly not under the affidavit of merit statute.
If the affidavit of merit had said a particular pharmacist had dispensed a particular prescription improperly, and that dispensing resulted in harm to a particular individual, then I think Walgreens could be a proper stand-alone ...

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