Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
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,
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
State of Delaware's Motion for Reargument
M. JOHNSTON, JUDGE
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
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
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 ...
Buy This Entire Record For