AmerisourceBergen and Cardinal Health both filed motions to dismiss last week, alleging that McDowell County should, instead, be filing lawsuits against pill mill doctors and pharmacies — not the drug distributors.
Dr. Anthony Cofer Jr. also filed a motion to dismiss last week, stating that McDowell County does not have the capacity to sue, that he is not a proper defendant and was only included as a “veiled attempt to defeat diversity.”
AmerisourceBergen wrote that the county’s attempt to blame lawful distributors for the drug abuse problem is factually unsupported, legally untenable and fundamentally misguided.
“Its own complaint establishes that opiod abuse is primarily drive—as drug abuse has always been — by criminal conduct preying on human frailty,” the memorandum in support of the motion to dismiss states. “It is not caused by DEA-licensed distributors who supply DEA-licensed pharmacies with FDA-approved prescription products that patients legitimately need to control pain and who are removed by many layers from those who divert and abuse opioids and increase the county’s cost, including through criminal conduct.”
In its motion to dismiss, Cardinal Health wrote that without a doctor to prescribe the pills and a pharmacy to dispense them, “the opioids shipped … would not be in the hands of county citizens.”
Cardinal Health wrote that it could not police pharmacies or doctors, and McDowell would not be unable to show the company sold a single pill to a pharmacy that was not licensed and in good standing with the U.S. Drug Enforcement Administration and West Virginia Board of Pharmacy.
McDowell’s lawsuit, which was initially filed Dec. 23 in McDowell Circuit Court and removed to federal court on Jan. 25, alleges that McKesson, AmerisourceBergen, Cardinal Health failed to report suspicious orders for “obscenely large quantities” of prescription drugs.
It claimed that the drug distributors had a duty to refuse to ship suspicious orders.
“Cardinal Health merely delivers products to pharmacies, who have legal, ethical and professional responsibilities to dispense pursuant only to legitimate medical prescriptions,” the motion states. “Those prescriptions are issued by physicians who also have legal, ethical and professional responsibilities to prescribe medications only for legitimate medical purposes.”
McDowell County is one of more than a dozen counties and cities in West Virginia that have filed lawsuits against drug wholesalers during the last month.
The attorney general’s filed suit in 2012. That suit was settled for more than $40 million last month.
U.S. District Court for the Southern District of West Virginia case number: 1:17-cv-00946