The nation’s largest prescription drug distributor has lost its bid to keep a lawsuit against the company out of rural Boone County, an area hit hard by the opioid epidemic.
A federal judge in Charleston rejected McKesson’s claim that it has no duty under West Virginia law to refuse to ship “suspicious” orders of prescription opioids and other powerful drugs to pharmacies in the state.
U.S District Judge David Faber sent Attorney General Patrick Morrisey’s lawsuit against drug giant McKesson back to Boone County Circuit Court, where the case is expected to pick up steam.
The lawsuit seeks to hold McKesson accountable for West Virginia’s opioid epidemic. The lawsuit, which was filed in early 2016, alleges that McKesson failed to take steps to stop massive shipments of prescription painkillers to West Virginia.
Between 1999 and 2014, Boone County had the third-highest prescription drug overdose death rate in the nation, according to data from the Centers for Disease Control and Prevention.
In court filings, McKesson’s lawyers argued that Morrisey’s lawsuit should stay in federal court, saying that two decade-old letters from the U.S. Drug Enforcement Administration — not West Virginia law — required drug wholesalers to report suspicious orders of controlled substances.
But the state’s lawyers cited West Virginia Board of Pharmacy rules that mirror federal law and bar McKesson and other drug wholesalers from filling suspect orders of unusual size and frequency.
“It is abundantly clear that by distributing suspicious orders of controlled substances into West Virginia, McKesson violates a legal duty owed to the state to refrain from doing so,” wrote lawyers representing Morrisey’s office.
Faber’s ruling marks the second time a federal judge has remanded the McKesson lawsuit to Boone County.
U.S. District Judge John Copenhaver did the same in January 2017, rejecting McKesson’s earlier arguments that the case belonged in federal court because the state lawsuit referenced violations of federal law.
Last July, McKesson once again removed the case to federal court, where the law is typically more favorable to corporations. The case was assigned to Faber, who ordered its return to Boone Circuit Judge Will Thompson’s courtroom last week.
Since 2012, Thompson has overseen lawsuits against more than a dozen other prescription drug distributors. In January 2017, Cardinal Health and AmerisourceBergen agreed to pay a combined $36 million to settle lawsuits filed by the state.
Last week, McKesson landed in the crosshairs of a congressional investigation into pain-pill shipments to small-town pharmacies in West Virginia.
The House Energy and Commerce Committee sent a letter to McKesson executives, raising questions about the company’s shipping practices. In two years, McKesson shipped nearly 5 million doses of prescription painkillers to a now-shuttered pharmacy in Kermit, a town with 400 people, the committee said in the letter.
Between 2006 and 2014, McKesson also shipped a total of 5.8 million hydrocodone and oxycodone pills to a small pharmacy in Mount Gay, population 1,800. The company supplied another 2.3 million prescription painkillers to the Logan County drugstore’s branch location in Stollings, just 3 miles away, according to the committee’s letter
Morrisey’s lawsuit against McKesson alleges that the drug company violated state consumer protection laws, failed to meet industry standards and failed to develop an adequate system to identify suspicious drug orders. McKesson’s “actions in West Virginia netted large profits, which the corporation used in paying bonuses and additional commissions to incentivize more business,” according to the lawsuit.
McKesson has said it does not give bonuses or provide any incentives to employees based on the sale of its controlled substances.
A McKesson spokeswoman did not return a request for comment Monday.
The West Virginia Department of Health and Human Resources, along with the Department of Military Affairs and Public Safety, also are plaintiffs in the lawsuit against McKesson.
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.
The settlement committed San Francisco-based McKesson to a multi-year suspension of sales of controlled substances from distribution centers in Colorado, Ohio, Michigan and Florida. It also imposes new and enhanced compliance requirements on McKesson’s distribution system.
In 2008, McKesson agreed to a $13.25 million civil penalty for similar violations. The company is ranked No. 5 in the Fortune 500.