STATE OF DELAWARE, ex rel. KATHLEEN JENNINGS, Attorney General of the State of Delaware, Plaintiff Below, Appellant,
WALGREEN CO. and WALGREEN EASTERN CO., INC., Defendants Below, Appellees.
December 4, 2019.
Closed December 12, 2019.
decision has been designated as "Table of Decisions
Without Published Opinions." in the Atlantic Reporter.
Below— Superior Court of the State of Delaware. C.A.
SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
T. Vaughn, Jr., Justice
consideration of the notice of interlocutory appeal, the
supplemental notice of appeal, their exhibits, and the
Superior Court's order denying the State of
Delaware's motion for certification of an interlocutory
appeal, it appears to the Court that:
The State has petitioned this Court under Supreme Court
Rule 42 to accept an interlocutory appeal from a
Superior Court decision granting, without prejudice, the
motion to dismiss filed by Defendants Walgreen Co. and
Walgreen Eastern Co., Inc. (collectively, "
The State filed the underlying action against certain
pharmaceutical manufacturers, pharmaceutical distributors,
and pharmacies, seeking damages resulting from their alleged
misconduct relating to the handling of prescription opioids.
Relevant here, the complaint alleged negligence on the part
of Walgreens. Walgreens moved to dismiss the complaint. The
Superior Court concluded that the state and federal
regulatory scheme preempted certain common law negligence
claims but did not preempt a medical malpractice
claim. Because the complaint was not
accompanied by an affidavit of merit (" AOM" ) as
required by Delaware law for medical malpractice
claims, the Superior Court dismissed the
claims sounding in medical negligence and allowed the State
the opportunity to submit an AOM. In April 2019, the State
filed an amended complaint, accompanied by an AOM. Walgreens
again moved to dismiss. At oral argument on August 1, 2019,
the Superior Court found that the allegations of harm and
causation contained in the State's AOM were insufficient
to support a medical malpractice claim. Accordingly, the
Superior Court granted Walgreens' motion to dismiss
without prejudice and granted the State leave to amend its
AOM. The State filed a motion for reargument, which the court
denied on September 25, 2019.
November 12, 2019, the State asked the Superior Court to
certify an interlocutory appeal from the court's August
1, 2019 bench ruling. The State maintained that the
court's order decided a substantial issue of material
importance. The State also argued that the
following Rule 42(b)(iii) factors weighed in favor of
granting interlocutory review: the interlocutory order
involves a question of law resolved for the first time in the
State,  the decisions of the trial courts are
in conflict, and the court's decision relates
to the construction of a Delaware statute. Walgreens
opposed the application, arguing that the State's request
was untimely, the State had failed to show that the likely
benefits of interlocutory review would outweigh the probable
costs, and the State's application
failed to satisfy the requirements of Rule 42(b)(iii).
December 4, 2019, the Superior Court denied the State's
application for certification of an interlocutory appeal.
Although the Superior Court agreed with the State that its
ruling had decided a substantial issue of material
importance— a threshold consideration under Rule
42(b)(i)— it nevertheless concluded that interlocutory
review was not warranted, a conclusion the court reached only
after balancing the Rule 42(b)(iii) factors. We agree with
the Superior Court's decision.
Applications for interlocutory review are addressed to the
sound discretion of the Court. Giving due weight to
the trial court's analysis and in the exercise of our
discretion, this Court has concluded that the application for
interlocutory review does not meet the strict standards for
certification under Supreme Court Rule 42(b) .
Exceptional circumstances that would merit interlocutory
review of the Superior Court's decision do not exist in
this case, and the potential ...