McKesson wants Morrisey's drug lawsuit in federal court

By Chris Dickerson | Mar 1, 2016

CHARLESTON — The nation’s largest prescription drug distributor has asked to have a lawsuit filed against it by West Virginia Attorney General Patrick Morrisey removed to federal court.

Morrisey’s office filed the complaint Jan. 8 in Boone Circuit Court against McKesson, the nation's largest prescription drug distributor for allegedly failing to identify, detect, report and help stop the flood of suspicious drug orders into the state.

McKesson filed its notice of removal to federal court on Feb. 23.

When Morrisey’s lawsuit was announced, he said his office had conducted "an extensive investigation," adding that McKesson delivered about 99.5 million doses of hydrocodone and oxycodone to West Virginia between 2007 and 2012.

The AG's office alleges many of those shipments fueled drug abuse across the state, an impact the lawsuit contends contributed to the nation’s highest overdose rate, decreased worker productivity and exhausted resources statewide.

“This action represents yet another major step by my office to fight a terrible affliction on our citizenry,” Morrisey said in a statement. “We have carefully investigated this matter and believe that McKesson should be held responsible for its alleged failure to comply with the state’s laws.

"This failure is one cause of many for the state’s prescription drug overdose rate, decreased worker productivity and the wasteful expenditure of precious state resources," Morrisey said. "This action represents yet another major step by my office to fight this terrible affliction on our citizenry."

The civil complaint highlights hydrocodone and oxycodone delivered to select counties, while the overall case focuses upon those drugs and several others distributed statewide.

Morrisey notes that orders of hydrocodone and oxycodone in Logan County were higher than 10 million doses between 2007 and 2012. That number is higher than those for more than populous counties such as Kanawha, Boone and Raleigh.

Breaking the numbers down, the 10.2 million doses would give more than 276 doses to very person in Logan County.

The numbers are similar for Mingo County. Morrisey's office says McKesson shipped 3.4 million doses in 2007. Based on CDC average usage numbers, that would equal enough to give each patient a dose of hydrocodone or oxycodone every 1 hour and 15 minutes.

The complaint alleges McKesson either failed to develop an adequate system to identify suspicious orders or blindly ignored such potential. It also alleges McKesson violated state consumer protection laws and failed to meet industry standards, such as knowing each drug store’s population base and their methods to ensure filled prescriptions meet a legitimate medical purpose.

The lawsuit contends McKesson only developed a plan to identify, detect, report and stop suspicious orders as result of two settlements with the federal government, the first of which involved significantly less pills than the corporation shipped to West Virginia.

“My decision … is an independent one, consistent with my duty to carefully examine evidence before filing a lawsuit,” Morrisey said in a statement. “In this case, we issued a subpoena, enforced the subpoena and conducted a thorough investigation, before concluding that it was proper to file this action.”

The complaint seeks injunctive relief for violations of the state’s uniform controlled substances act, in addition to charging McKesson with negligent violation of law, intentional acts and omissions, public nuisance, negligence, unjust enrichment, violation of the state’s Consumer Credit and Protection Act and unfair methods of competition and/or unfair or deceptive acts or practices.

In its answer in federal court, McKesson says the state is a proper plaintiff in the case and, therefore, Morrisey doesn’t have authority to file the suit. It also denies it distributed “high quantities” of scheduled narcotics to pharmacies in West Virginia.

"While we don't comment on pending litigation against us, we share the view that the substance abuse epidemic is a serious problem and we will continue to work with our supply chain partners in support of our prevention efforts," said Kris Fortner, the director of Marketing Strategy and Public Relations for McKesson. "A solution must involve many actors, including doctors, pharmacies, wholesalers, manufacturers and government regulators."

McKesson is represented by Russell D. Jessee and Devon J. Stewart of Steptoe & Johnson PLLC in Charleston as well as Geoffrey Hobart and Matthew Benov of Covington & Burling PLLC in Washington, D.C.

Morrisey is represented by Deputy AG Vaughn Sizemore as well as Special Assistant AG L. Lee Javins of Bailey Javins & Carter LC in Charleston.

U.S. District Court case number 2:16-cv-1772

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Mckesson Corporation Virginia Attorney General's Office

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