The state Supreme Court has refused a request by Delaware’s attorney general to review a judge’s decision dismissing Walgreens as a defendant in Delaware’s lawsuit against the drug industry over the opioid crisis.
The court issued a ruling Wednesday saying there were no exceptional circumstances justifying an interlocutory review of the judge’s decision. An interlocutory appeal is one made before the underlying case is resolved in the lower court and typically is granted only in rare circumstances.
State officials have accused the pharmaceutical industry of misleading doctors and consumers about addiction and other risks from prescription painkillers. Defendants in the lawsuit include manufacturers Purdue Pharma and Endo Pharmaceuticals, and distributors Cardinal Health and McKesson Corporation.
The state’s lawsuit accused Walgreens of negligence. The judge concluded that state and federal regulations preempted certain common law negligence claims but did not prohibit a medical malpractice claim.
State officials then filed an amended complaint alleging malpractice, which requires the submission of an affidavit of merit by a medical expert. The judge found that the allegations of harm and causation contained in the affidavit of merit were insufficient.
The judge noted that such affidavits must state a specific injury to a specific individual, which the state did not do. She said that an alleged injury to the state itself was a new cause of action with no precedent.
The judge subsequently refused both the state’s request for reargument and its request to certify an interlocutory review by the Supreme Court.
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