A circuit judge on Tuesday agreed to Florida’s request to keep 500 unidentified physicians out of the state’s lawsuit against the pharmaceutical industry over the opioid epidemic, but she left open the possibility of adding specific doctors’ names later.
CVS Pharmacy Inc. and Walgreen Co. this year filed what is called a third-party complaint against 500 “John and Jane Doe” doctors, alleging that the physicians — and not drug stores — are to blame for faulty prescriptions.
The state’s lawsuit against the chains “is nothing more than unsupported speculation” that pharmacists “filled prescriptions for opioid medications that they should not have filled” despite the state’s “inability to support its claim with even one instance of an improperly filled prescription,” the pharmacy companies argued in the third-party complaint filed Jan. 22.
Lawyers for Attorney General Ashley Moody, who called the pharmacy chains’ move a “publicity stunt,” asked Pasco County Circuit Judge Kimberly Sharpe Byrd to reject the request.
During a hearing Tuesday, Byrd agreed to strike the third-party complaint but said CVS and Walgreens might be able to add doctors’ names after the state discloses prescriptions it maintains should not have been filled.
The attorney general’s office filed the lawsuit in 2018 to try to recoup millions of dollars the state has spent because of the opioid epidemic. The lawsuit was filed against manufacturers, distributors and sellers of opioids and included a series of allegations, including misrepresentations about opioid use and filling suspicious orders for drugs. The state later added CVS and Walgreens to the lengthy list of defendants in the case.
Moody’s lawyers accused the pharmacy companies of filing the third-party complaint in January to delay the already complex litigation.
“The state’s position is that there is no role for the doctors in this case,” Ariela Migdal, an attorney with Kellogg Hansen Todd Figel & Frederick said Tuesday. The Washington, D.C.-based firm represents the state in the lawsuit.
But the drug-store companies’ attorneys maintain they were forced to file the complaint against unnamed prescribers because the state has yet to disclose a single flawed prescription more than 18 months after the lawsuit was filed.
“If they should not have been filled, then it logically means that a doctor should not have written them,” Marcos Hasbun, who works for the Tampa-based Zuckerman Spaeder law firm and represented CVS and Walgreens during Tuesday’s hearing, told the judge.
The state “cannot seriously argue that it can sue the pharmacies” but not prescribers over faulty prescriptions, Hasbun said.
“Without the doctor writing the prescription, there is no prescription for pharmacists to fill,” he argued.
But Migdal said “the focus of the state’s action is on whether the pharmacies violated their own duties of care” and not on whether doctors were wrong to order the drugs.
Even if a prescriber “writes a prescription that is faulty in some way,” a pharmacist “still has an independent duty under Florida law to do their due diligence and investigate the red flag and if necessary decline to fill that prescription,” she argued.
Adding hundreds of unidentified doctors to the case introduces “new elements” that are not already part of the lawsuit, Migdal said.
“Litigating these new issues and causes of action would take time and really would divert resources from the state’s case against the pharmacies,” she added.
But Hasbun accused the state of dragging out the case by refusing to disclose any of the allegedly faulty prescriptions.
The third-party complaint only identifies John Doe doctors because “the state has yet to identify a single opioid prescription it contends CVS and Walgreens should not have filled,” despite having access to prescriptions dating back to 2011, he said.
“When the state decides to finally get around to doing that, CVS and Walgreens will amend the third-party complaint to name all, or perhaps just some, of the doctors who wrote the prescriptions the state claims CVS and Walgreens should not have filled,” Hasbun argued. “This case is not just about what the state wants to prove. It’s what the CVS and Walgreens defendants also want to prove in their defense and also shift any liability that might be imposed upon them.”
But Migdal said doctors shouldn’t be added to the case.
“This isn’t about whether they wrote good or bad prescriptions. This is about the pharmacies’ responsibilities under Florida law,” she said.
Byrd agreed to strike the third-party complaint but said the pharmacy chains could try again, with the names of specific doctors.
“There’s a lot of hypotheticals here and unknowns, and until we dig down into discovery … I don’t know what those are and I don’t think the defense knows what those are,” the judge said, adding, “I’m not sure it’s proper to just have a placeholder with unknown all John Does.”
But she said the court could address the issue of allowing CVS and Walgreen to add doctors as defendants in the lawsuit if “at any point” they receive information about the faulty prescriptions.
For now, nobody knows how many people are going to be named “and how complicated the case is going to get,” Byrd said.
“We just don’t know that yet,” the judge said.
The Florida case, one of myriad legal battles being waged throughout the country over the devastation wrought by highly addictive opioids, is slated for a jury trial. It’s unclear how long a trial will last and when it will take place.
David Frederick, a lawyer who works with Migdal, told Byrd he expects a trial to take three weeks. The case should be ready to go before a jury in late 2021 or early 2022, he said.
But Benjamin C. Block, a Covington & Burling LLP attorney who represents the defendants, said the trial will take longer and shouldn’t begin before mid-2022.
“If history is a guide,” he said, “in other similarly massively scoped opioid claims, we’re talking a trial of multiple months, not weeks.”