As I mentioned in our blog post on November 6, 2017, we would be covering the US “opioid crisis” as the lawsuits against manufacturers and distributors heated up. Today, we found out Kentucky Attorney General, Andy Beshear, filed a complaint against McKesson Corp. According to this story by Reuters, Mr. Beshear “accused drug distributor McKesson Corp of helping fuel the opioid epidemic by failing to halt shipments of suspiciously large or frequent orders by pharmacies of prescription painkillers.”
Mr. Beshear’s office filed suit in Kentucky state court. The complaint further alleges McKesson filled suspicious orders and shipped tremendous quantities of prescription opioid pharmaceuticals to Kentucky pharmacies, without reporting them to authorities or preventing the shipments. According to the AG’s own press release, “Federal and state law requires pharmaceutical distributors to monitor and report to law enforcement when it ships large or suspicious supplies of opioids to a state or region.”
There’s a wide array of state and local governments pursuing lawsuits against pharmaceutical companies, including McKesson, for deceptive marketing and failures to report suspicious activity which are resulting in opioid addiction and deaths within their cities and towns.
Let’s take a look at causes of action and potential experts:
Based on the complaint, we see that the Kentucky AG is attacking McKesson on some interesting causes of action, including: Consumer Protection Act Violation; Public Nuisance; Negligence per se; Negligence; Unjust Enrichment; Fraud by Omission; and Medicaid Fraud. Mr. Beshear is seeking punitive damages for the State of Kentucky. The complaint further provides the Kentucky Consumer Protection Act protects citizens from “predatory or inappropriate acts by sellers of goods.” The Act states “unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”
With this information it appears deceptive marketing practices will be an issue in this lawsuit. Both Kentucky and McKesson are likely to employ marketing expert witnesses to address which practices may or may not be false and misleading.
Within this cause of action, Mr. Beshear further alleges violations of the Kentucky Controlled Substances Act. This Act creates a “broad duty on the part of wholesalers to monitor, detect, investigate, refuse to fill, and report suspicious orders of prescription opioids.”
One can only imagine there will be an argument over what constitutes a “suspicious order of prescription opioids.” As such, we expect both parties will be retaining pharmaceutical and pharmacy industry experts. The parties are likely to argue about the existence of indicators used to alert a distributor when a suspect order is placed. I anticipate the parties will be looking to pharmaceutical supply chain or logistics expert witnesses to provide background about notification and indicator systems for identifying suspicious orders.
What relief is the Kentucky AG seeking?
By reviewing the complaint and articles mentioned above, Kentucky is arguing McKesson’s activity has resulted in overdoses which put a drain on emergency services and hospitals. I’m certain Mr. Beshear will argue the costs of medical services have increased significantly as the state has had to deal with opioid overdose.
I further envision an argument will be made about the increase in law enforcement and first responder costs associated with fighting the illegal sales of heroin and other opiates stemming from addiction.
The complaint makes it pretty clear Mr. Beshear is seeking punitive damages on behalf of Kentucky. That being said, both parties are going to employ damages experts. This may involve the use of economists and forensic accountants to determine the amount of financial damage inflicted on Kentucky by McKesson’s actions.
Final Thoughts:
As I’m sitting here in California, I do not understand the true ramifications of the opioid crisis on the State of Kentucky. I am interested to see what individual civil litigation options may be available to the citizens of Kentucky. As such, I invite my friend Daryl Dixon of Daryl T. Dixon Law, in Paducah, Kentucky, to provide us with his thoughts on this subject on his own blog! Ball is in your court, Daryl. Let’s see what the Wildcats have for me…
UPDATED 02/07/2018:
Here is the response from Daryl T. Dixon – Examining the Opioid Crisis: What are my options?
I agree that there will be disputes over the adjectives “frequent” and “suspicious,” since, as with so many adjectives, there can be disagreement over whether the modifier accurately applies. Until and unless there is quantitative evidence (not just the presence of “indicators”) of what is considered “frequent” and “suspicious,” these words will continue to create confusion.
Thanks for the input, Dr. Perlman! Appreciate your insights on this post. For future readers, it should be noted that Dr. Perlman is a linguistics expert witness. Document interpretation is one of his specialties. You can find out more about Dr. Perlman here: https://www.experts.com/Expert-Witnesses/Linguistics-Expert-Alan-Perlman and here http://www.language-expert.net/.
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