New York has admitted in advance of a trial over whether drug distributors caused the “public nuisance” of opioid addiction that the state never investigated the defendant companies for diverting narcotics and none of the pharmacies they served were prosecuted for illegal sales.
The state also said its investigative agencies never made a finding that any of the distributors “engaged in any misconduct relating to the diversion of prescription opioids.”
The stipulations filed Oct. 29 in state court in Suffolk County provide a clearer picture of the case New York and two of its counties will make next year if a scheduled trial against Amerisource Bergen, Cardinal Health and McKesson takes place. The state earlier this year conceded it won’t present evidence that the distributors sold opioids to anyone who wasn’t licensed by the Drug Enforcement Administration and its experts won’t identify any specific doctors who were misled by drug company marketing.
In April, Suffolk County Justice Jerry Garguilo also dismissed claims relating to retail pharmacies, saying state nuisance law precluded the corporate parents of those stores from being held liable for the actions of their pharmacists. He left intact claims based upon the wholesale distribution operations of those pharmacy chains, which they halted years before being sued.
Taken together, the rulings and concessions by the plaintiffs leave lawsuits based upon broad theories of nuisance and harm, essentially that the companies distributed more opioids than the community required and used aggressive marketing to convince doctors, in aggregate, to prescribe too many of the pills. Central to the claims is the theory that by selling too many opioids, the distributors facilitated diversion of the drugs into the hands of people who shouldn’t have them.
In a list of stipulations filed this week, the state says it “will not present evidence or make arguments at trial that any pharmacy was investigated, prosecuted, and/or sanctioned, after being sent opioids by a defendant.” The state also said it has tentatively agreed not to present any evidence a specific pharmacy diverted opioids it received from the defendants. The state may refer to illegal activity conducted by a lengthy list of doctors and other prescribers, but the distributors can object if there’s no evidence they supplied opioids to them.
In another filing, Walgreen and CVS sought to dismiss nuisance claims against them under New York’s three-year statute of limitations. With the dispensing claims already dismissed, they argue, all that remain are claims based upon their former wholesale operations, which primarily distributed opioids to their own retail pharmacies. Both companies stopped distributing controlled substances in 2014, the companies said, making it impossible to link them to the current “public nuisance” of opioid addiction the state alleges.
The state and county plaintiffs claim they are seeking “abatement” in the form of money to pay for opioid treatment programs and related costs. The pharmacies argue that is precluded by the statute of limitations.
“With respect to Walgreens and CVS, there is no continuing nuisance and therefore there is nothing to abate: It is undisputed that both pharmacies stopped the alleged wrongful conduct—the distribution of any prescription opioids at issue in this case—more than six years ago,” the companies said.
At a hearing this week, Judge Garguilo said he plans to start the trial in January or February.