Drug distributors ask Boone judge to keep pill records sealed

By Kyla Asbury | May 13, 2015

MADISON – The pharmaceutical drug distributors in a lawsuit filed by the state have asked a judge to deny the state's request to unseal a court document that contains information about their shipments to pharmacies.

The notice of filing proposed order unsealing the second amended complaint was filed last month under seal in Boone Circuit Court.

AmerisourceBergen filed a renewed motion to dismiss the second amended complaint and a motion to strike the second amended complaint, stating that the second amended complaint was filed a day late and it was not served upon any of the defendants' counsel.

The renewed motion stated that AmerisourceBergen moved to strike the second amended complaint in its entirety for the plaintiffs' failure to provide a more definite statement "by alleging each individual defendant's wrongful act(s) instead of using one broad category of defendants, along with addressing each wrongful act(s) with clarity" as ordered by the court.

The companies are being sued by the Department of Health and Human Resources and the Department of Military Affairs and Public Safety.

The lawsuit alleges that the companies have helped fuel the state's pain pill epidemic by shipping excessive amounts of prescription painkillers to southern West Virginia pharmacies.

The drug shipment records are contained in a revised complaint filed by the state. The lawsuit originally was filed in 2012 by former Attorney General Darrell McGraw. Current AG Patrick Morrisey's office now is handling the case.

In April, the companies filed a proposed order asking Circuit Judge William Thompson to keep the entire revised complaint sealed, arguing that the drug shipment information is confidential.

Jim Cagle, a special assistant attorney general representing the state, argued that the drug shipment information is in the public's interest and should be disclosed. He filed a proposed order in March that seeks to unseal the revised lawsuit.

Defendants in the lawsuit include AmerisourceBergen Drug Corp. ; Miami-Luken Inc.; J.M. Smith Corporation; the Harvard Drug Group LLC; ANDA Inc.; Associated Pharmacies Inc.; Auburn Pharmaceutical Company; H.D. Smith Wholesale Drug Company; Keysource Medical Inc.; Masters Pharmaceuticals Inc.; Quest Pharmaceuticals Inc.; Richie Pharmacal Co Inc.; and Top RX Inc.

The state is represented by Cagle and Rudolph L. DiTrapano of DiTrapano, Barrett & DiPiero.

The defendants are represented by Roger L. Foster, Julia Chico Abbitt, Alvin L. Emch, Laurie K. Miller, Thomas J. Hurney and Davis A. Barnette of Jackson Kelly; Eric W. Sitarchuk and Meredith S. Auten of Morgan Lewis & Bockius LLP; David B. Thomas, Susan M. Robinson, Bryant J. Spann and Robert H. Akers of Thomas Combs & Spann PLLC; Steven E. Glazek of Barris, Sott, Denn & Driker PLLC; Charles M. Love III and Fazal Shere of Bowles Rice McDavid Graff & Love LLP; James W. Matthew, John C. Blessington, Kathleen M. Dyer and William G. Potter of K&L Gates; Webster J. Arceneaux III and Ramonda Lyons of Lewis Glasser Casey & Rollins PLLC; Rebecca A. Betts and Pamela C. Deem of Kay Casto & Chaney PLLC; Larry Mackey and Dean Barnard of Barnes & Thornburg LLP; Niall A. Paull and Nathan B. Atkinson of Spilman Thomas & Battle PLLC; Tom Flaherty of Flaherty Sensabaugh Bonasso PLLC; Richard T. Lauer of Masters Pharmaceutical Inc.; David E. Schumacher, Robert P. Martin, Charles R. Bailey and John P. Fuller of Bailey & Wyant PLLC; Robert J. Ridge and Allen Lopus of Thorp Reed & Armstrong; and Paul F.T. Edwards, Michael Marshall and E. Gene Thornton III of Evans Petree.

Boone Circuit Court case number: 12-C-141

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