State of Delaware v. Walgreen Co. ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ex rel. §
KATHLEEN JENNINGS, Attorney §
General of the State of Delaware,
§
§ No. 500, 2019
Plaintiff Below, §
Appellant, § Court Below–Superior Court
§ of the State of Delaware
v. §
§ C.A. No. N18C-01-223
WALGREEN CO. and §
WALGREEN EASTERN CO., INC., §
§
Defendants Below, §
Appellees. §
Submitted: December 4, 2019
Decided: December 11, 2019
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
Upon consideration of the notice of interlocutory appeal, the supplemental
notice of appeal, their exhibits, and the Superior Court’s order denying the State of
Delaware’s motion for certification of an interlocutory appeal, it appears to the
Court that:
(1) The State has petitioned this Court under Supreme Court Rule 42 to
accept an interlocutory appeal from a Superior Court decision granting, without
prejudice, the motion to dismiss filed by Defendants Walgreen Co. and Walgreen
Eastern Co., Inc. (collectively, “Walgreens”).
(2) The State filed the underlying action against certain pharmaceutical
manufacturers, pharmaceutical distributors, and pharmacies, seeking damages
resulting from their alleged misconduct relating to the handling of prescription
opioids. Relevant here, the complaint alleged negligence on the part of Walgreens.
Walgreens moved to dismiss the complaint. The Superior Court concluded that the
state and federal regulatory scheme preempted certain common law negligence
claims but did not preempt a medical malpractice claim.1 Because the complaint
was not accompanied by an affidavit of merit (“AOM”) as required by Delaware
law for medical malpractice claims,2 the Superior Court dismissed the claims
sounding in medical negligence and allowed the State the opportunity to submit an
AOM.3 In April 2019, the State filed an amended complaint, accompanied by an
AOM. Walgreens again moved to dismiss. At oral argument on August 1, 2019,
the Superior Court found that the allegations of harm and causation contained in
the State’s AOM were insufficient to support a medical malpractice claim.4
Accordingly, the Superior Court granted Walgreens’ motion to dismiss without
prejudice and granted the State leave to amend its AOM. The State filed a motion
for reargument, which the court denied on September 25, 2019.
1
State v. Purdue Pharma L.P., 2019 WL 446382, at *11 (Del. Super. Ct. Feb. 4, 2019).
2
18 Del. C. § 6853.
3
Purdue Pharma, 2019 WL 446382, at *11.
4
State’s Supplemental Notice of Appeal, Exhibit J, at pp. 63-68.
2
(3) On November 12, 2019,5 the State asked the Superior Court to certify
an interlocutory appeal from the court’s August 1, 2019 bench ruling. The State
maintained that the court’s order decided a substantial issue of material
importance.6 The State also argued that the following Rule 42(b)(iii) factors
weighed in favor of granting interlocutory review: the interlocutory order involves
a question of law resolved for the first time in the State,7 the decisions of the trial
courts are in conflict,8 and the court’s decision relates to the construction of a
Delaware statute.9 Walgreens opposed the application, arguing that the State’s
request was untimely, the State had failed to show that the likely benefits of
interlocutory review would outweigh the probable costs,10 and the State’s
application failed to satisfy the requirements of Rule 42(b)(iii).
(4) On December 4, 2019, the Superior Court denied the State’s
application for certification of an interlocutory appeal. Although the Superior
Court agreed with the State that its ruling had decided a substantial issue of
material importance—a threshold consideration under Rule 42(b)(i)—it
nevertheless concluded that interlocutory review was not warranted, a conclusion
5
In the interim, the Superior Court stayed the proceedings on September 26, 2019, for thirty
days. It appears from the exhibits to the State’s notice of appeal that the stay was further
extended by the implicit agreement of the parties through November 6, 2019.
6
Del. Supr. Ct. R. 42(b)(i).
7
Del. Supr. Ct. R. 42(b)(iii)(A).
8
Del. Supr. Ct. R. 42(b)(iii)(B).
9
Del. Supr. Ct. R. 42(b)(iii)(C).
10
Del. Supr. Ct. R. 42(b)(iii).
3
the court reached only after balancing the Rule 42(b)(iii) factors. We agree with
the Superior Court’s decision.
(5) Applications for interlocutory review are addressed to the sound
discretion of the Court.11 Giving due weight to the trial court’s analysis and in the
exercise of our discretion, this Court has concluded that the application for
interlocutory review does not meet the strict standards for certification under
Supreme Court Rule 42(b). Exceptional circumstances that would merit
interlocutory review of the Superior Court’s decision do not exist in this case,12 and
the potential benefits of interlocutory review do not outweigh the inefficiency,
disruption, and probable costs caused by an interlocutory appeal.13
NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is
REFUSED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
11
Del. Supr. Ct. R. 42(d)(v).
12
Del. Supr. Ct. R. 42(b)(ii).
13
Del. Supr. Ct. R. 42(b)(iii).
4