         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).

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