Judge says state agencies can sue drug companies

MADISON – A Boone County judge has rejected a request by a dozen drug companies to dismiss a case against them filed by the state Attorney General’s office.

Boone Circuit Judge William Thompson ruled last month that the state Department of Health and Human Resources and the state Department of Military Affairs have the right to sue the drug companies over the alleged failure to provide effective controls and procedures to guard against the diversion of controlled substances that are known to have a high likelihood for abuse.

“It is foreseeable the conduct alleged – failing to put in place proper anti-diversion controls so that West Virginia ‘pill mills’ would not be supplied and enabled to fuel the prescription drug epidemic – is sufficiently likely to result in the state having to spend additional resources to combat the escalation of the prescription drug epidemic,” Thompson wrote. “The … complaint alleges defendants violated state law, and the court must accept those allegations as true at this stage of litigation.”

The lawsuit, which was filed by former Attorney General Darrell McGraw before he left office in 2012, blames the drug distributors for West Virginia’s prescription pain medication problem. It claims the companies did nothing to stop suspicious orders of prescription painkillers and knew the drugs weren’t being used for legitimate purposes.

Lawyers for the drug distributors said the state agencies didn’t have sufficient grounds to sue them, and that they didn’t violate any consumer protection laws because they didn’t sell the drugs directly to residents. The companies claim the state Board of Pharmacy would have suspended or revoked their licenses if that were breaking laws.

Thompson said those arguments weren’t valid reasons to dismiss the case, But he did order the state agencies to update the lawsuit and provide details about how each of the drug companies broke the law.

The lawsuit was removed to federal court shortly after it was filed, but was remanded back to state court early in 2013.

McGraw, and now-Attorney General Patrick Morrisey claim Amerisource, Miami-Luken Inc., J.M. Smith Corporation, the Harvard Drug Group, Anda Inc., Associated Pharmacies Inc., Auburn Pharmaceutical Company, H.D. Smith Wholesale Drug Company, Keysource Medical Inc., Masters Pharmaceuticals, Quest Pharmaceuticals, Richie Pharmacal Co. and Top RX Inc. have substantially contributed to and substantially, illicitly and tortiously benefitted financially from the prescription drug abuse problem in West Virginia.

The defendants distribute various prescription drugs that are closely identified with the prescription drug problem in West Virginia and were on notice of the growing epidemic from the abuse of the prescription drugs, according to the suit.

The Attorney General’s Office claims the defendants are major distributors of controlled substances and have supplied the prescriptions to drugstores, which then dispense controlled substances based upon bogus prescriptions from physicians who are prescribing controlled substances for illegitimate medical purposes.

“Throughout their acts and omissions, these defendants have inserted themselves as an integral part of the pill mill process,” the complaint states.

The defendants have violated the West Virginia Uniform Controlled Substances Act and the West Virginia Consume Credit and Protection Act and have been unjustly enriched at the cost of the state of West Virginia.

Boone Circuit Court case number: 12-C-141