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: November 25, 2019
ORDER DENYING LEAVE TO APPEAL FROM INTERLOCUTORY
HONORABLE MARY M. JOHNSTON JUDGE
Plaintiff the State of Delaware has moved for an order
certifying an interlocutory appeal to the Delaware Supreme
Court. The determination of whether to certify an
interlocutory appeal lies within the discretion of the Court
and is analyzed under the criteria set forth in Supreme Court
Rule 42(b). An interlocutory appeal will not be
certified unless the Court finds that its decision: (1)
determines a substantial issue; (2) establishes a legal
right; and (3) satisfies one of the five criteria set forth
in Rule 42(b)(i)-(v). Under Rule 42(b)(i), the Court may look
to the criteria established by Rule 41.
this action, the State seeks to recover damages allegedly
resulting from manufacturers', distributors', and
pharmacies' misconduct relating to prescription opiods.
This Court originally dismissed the State's claims
against Defendant Walgreens, without prejudice, requiring
that the State file an Affidavit of Merit pursuant to 18
Del. C. § 6853(a)(1). An Affidavit of Merit was
filed under seal and reviewed by the Court. The Court found
that the Affidavit was insufficient and granted the State
leave to amend. The Court found that the Affidavit must
include examples of specific injuries to individuals, and the
proximate cause link between any breaches of pharmaceutical
duties and individual patients. It was not enough that the
State allege medical negligence in its role as parens
patriae, on behalf of its citizens in general.
State filed a Motion for Reargument, which was denied on
September 25, 2019.
State argues that interlocutory appeal pursuant to Supreme
Court Rule 42(b) is justified because the Court's
decision: relates to the merits of the case and determines a
substantial issue of material importance; involves an issue
of first impression in Delaware; relates to statutory
construction; and an interlocutory order may resolve a
conflict between trial courts.
Walgreens opposes certification of the interlocutory appeal.
Walgreens argues that: the application is untimely; the State
has not shown that the benefits of interlocutory review
outweigh the costs; and the State's application fails to
satisfy Rule 42(b)(iii).
Court finds that its decision determines a substantial issue
of material importance; involves a question of law resolved for
the first time in Delaware; and relates to statutory
construction. The Court does not find that there is a
conflict between trial courts requiring interlocutory
review. Rather, the finding that the Affidavit of
Merit was insufficient addresses a narrow issue not
previously considered in other decisions, primarily because
in a typical medical negligence case, the complaint clearly
states the identity of the allegedly injured individual
Court finds that interlocutory review in this case will not
substantially reduce further litigation and otherwise serve
considerations of justice.There is presently pending another
motion filed by the State, pursuant to Rule 54(b),
challenging the Court's previous ruling that the State
may only proceed against Walgreens through a health-care
negligence claim. Additionally, the State has filed a
Supplemental Affidavit of Merit. The Court has not yet had an
opportunity to review the Supplemental Affidavit for
the State has failed to demonstrate: that the likely benefits
of interlocutory review at this time are not outweighed by
the probable costs; and that interlocutory review is in the
interests of justice. The Application for Certification of an
Interlocutory Appeal is hereby DENIED.
IS SO ORDERED.
See, e.g., Tortuga Cas. Co. v.
Nat'l Fire Ins. Co. of Pittsburgh, 1991 WL 247813,
at *2 (Del.); State v. Superior Court,141 A.2d 468, ...