CHARLESTON – District Judge David Faber has remanded a lawsuit against McKesson Corporation regarding the opioid epidemic in Boone County back to state court.
The motion to remand was originally filed on March 3, 2016, in the U.S. District Court for the Southern District of West Virginia. District Judge John Copenhaver Jr. granted the motion to remand on Jan. 24, 2017. The suit was later transferred to the Judicial Panel on Multidistrict Litigation in the U.S. District Court for the Northern District of Ohio.
On Dec. 27, the JPML remanded the matter back to Charleston’s federal court. Faber ruled on the motion to remand on Feb. 15
“This case now finds itself in federal court for a second time because, on July 7, 2017, McKesson once again removed the case to this court,” Faber wrote. “In state court, McKesson moved for judgment on the pleadings asserting that McKesson has no duty under state law to refuse to ship suspicious orders.”
Faber reiterated what Copenhaver said last year—that McKesson’s argument that it did not have a duty to refuse to ship suspicious orders of prescription painkillers and other drugs across the state wasn’t entirely true.
McKesson argued that the federal Controlled Substance Act alone can generate the duty that it was alleged to have breached.
The order says that McKesson does not find the source of its duty in the federal CSA statute itself, but in letters that interpret the statute by the Drug Enforcement Agency.
“Consequently, it does not appear to the court that the only possible source of a putative duty to avoid filling suspicious orders lies in letters relied upon only by defendant, or that plaintiffs’ claims necessarily rely on this duty,” Copenhaver wrote last year. “For one thing, there are no good reasons to believe that the letters have any binding effect upon distributors.”
The plaintiffs argued that the DEA letters don’t create a binding effect upon distributors such as McKesson and are to be construed as mere warning letters.
“Defendant concedes that the letters were not binding, but in apparent contradiction, insists that the letters generate an ‘obligation’ that must be ‘heed[ed],’” Copenhaver wrote.
Copenhaver wrote that to the extent that the letters prove relevant, their guidance may of course be marshaled in support of particular allegations, but the agency itself has found that the letters were “not intended to have binding effect but were simply warning letters.”
“Defendant cannot stipulate a single duty to refuse to fill suspicious orders, about which defendant is itself ambivalent, generated merely by DEA letters in order to bootstrap into federal court a complaint that alleges numerous specific state-law causes of action,” Copenhaver wrote.
The plaintiffs have alleged violations of numerous West Virginia statutes and regulations, and the use of the catch-all “United 25 States laws and regulations” does not operate to unlock the federal courts to the claims at issue here.
“Even were there some indication from the complaint–which there is not–that federal agency letters provided some binding and relevant duty, ‘any doubts concerning the propriety of removal should be resolved against removal,’” Copenhaver wrote.
Copenhaver said McKesson bears the burden of quieting such doubts and has not done so in this case.
The lawsuit alleged that McKesson failed to take steps to stop massive shipments of prescription painkillers to West Virginia. It was filed by West Virginia Attorney General Patrick Morrisey, West Virginia Department of Health and Human Resources Secretary Karen Bowling and West Virginia Department of Military Affairs and Public Safety Secretary Joseph Thornton.
Last year, the U.S. Justice Department finalized a $150 million settlement with McKesson.
Federal prosecutors alleged that the company failed to detect and report pharmacies’ suspicious orders of prescription pain pills. McKesson first disclosed the settlement amount in an April 2015 financial statement.
U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03555
