COVID-19 Resources

As we all work to navigate the impact of COVID-19 on the health care sector and how care is delivered, ASPL wants to ensure our members have access to valuable resources to help you manage guidance being issued related to this pandemic.  If your organization has resources it would like to share, please forward the information to [email protected].

National Alliance of State Pharmacy Associations - https://naspa.us/resource/covid-19-information-from-the-states/
Bula Intelligence - Bula Blog
Faegre Drinker - Coronavirus (COVID-19) Resource Center
Hall Render - COVID-19 Resource Center
National Alliance of State Pharmacy Associations - COVID-19 State Rulings
National Association of Boards of Pharmacy - COVID-19 Resource Center
Quarles & Brady - COVID-19: Guidance for Clients

 


 

The American Society for Pharmacy Law (ASPL) is an organization of attorneys, pharmacists, pharmacist-attorneys and students of pharmacy or law who are interested in the law as it applies to pharmacy, pharmacists, wholesalers, manufacturers, state and federal government and other interested parties.

ASPL is a nonprofit organization with the purposes of

  • Furthering knowledge in the law related to pharmacists, pharmacies, the provision of pharmaceutical care, the manufacturing and distribution of drugs, and other food, drug, and medical device policy issues;
  • Communicating accurate legal educational information; and
  • Providing educational opportunities for pharmacists, attorneys, and others who are interested in pharmacy law

Latest News

July 7, 2020

INSURANCE LAW
Ohio Court of Appeals requires insurer to defend pharmaceutical manufacturer in opioid litigation

The appellant, Masters Pharmaceutical, Inc. (MPI), is a wholesaler operating from Hamilton County, Ohio, and was among the defendants sued by government entities in West Virginia, Michigan, and Nevada for costs incurred in combatting the opioid epidemic. The majority of the suits were transferred to the MDL court in the Northern District of Ohio as part of the National Prescription Opioid litigation.  The suits allege generally that MPI  “acted negligently in failing to investigate, report, and refuse to fill suspicious orders of prescription opioids, thereby failing to maintain effective controls against the diversion of prescription opioids into ‘other than legitimate medical, scientific, and industrial channels’ in violation of federal and state laws.” The suits claim that MPI contributed to the opioid epidemic and sought damages for increased costs to the plaintiffs for increased police patrols, judicial expenditures, prison and public works costs, substance-abuse treatment, and emergency and medical care services.

MPI tendered the suits to its insurer, Acuity, under eight commercial general liability (CGL) policies covering the relevant time periods (2010 – 2018). Acuity sought a declaration in state court that it had no duty to indemnify or defend in the underlying suits. The trial court granted Acuity’s motion and the appeal ensued.

On appeal, the Court noted that the relevant coverage in the CGL policies stated, “[Acuity] will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies. [Acuity] will have the right and duty to defend the insured against any suit seeking those damages. However, [Acuity] will have no duty to defend [MPI] against any suit seeking damages for bodily injury or property damage to which this insurance does not apply.” “Bodily injury” is defined in the policies as “bodily injury, sickness, or disease sustained by a person, including death ...” and that damages due to bodily injury include damages “claimed by any person or organization for care, loss of services, or death resulting at any time from the bodily injury,” while not otherwise define “damages.”

Neither party argued that opioid addiction constitutes bodily injury under the policies. The trial court, however, agreed with Acuity that the parties in the underlying suits are government agencies, not individuals who suffered harm, and that the “underlying suits do not state a claim that is ‘potentially or arguably within the policy coverage’ because the governmental entities are not seeking damages ‘because of bodily injury.’ Rather, the court determined that they are seeking damages for economic losses caused by MPI’s failure to prevent diversion of opioids.” The Court held that interpretation of the phrase “because of” should be broad as it relates to insurance policies. Because the policies cover “damages ‘claimed by any person or organization for care ...’” [emphasis in original], ... “the policies expressly provide for a defense where organizations claim economic damages, as long as the damages occurred because of bodily injury.” In support of its holding, the Court cited Cincinnati Ins. Co., v. H.D. Smith, LLC, 829 F.3d 771 (7th Cir. 2016), which dealt with policies containing language identical to Acuity’s CGL policies. Thus, the trial court erred when it found no duty to defend.

Acuity also claimed that its duty to defend was obviated by a “loss-in-progress” provision that conditions coverage for bodily injury on the insured’s demonstration that it was unaware, prior to the policy period, that “the bodily injury or property damage occurred.” It argued that prior to 2010 MPI was on notice by DEA show cause orders that it had failed to maintain effective controls against diversion. The underlying cases allege that MPI’s failures were the “direct and proximate cause” of the opioid epidemic and bodily damage. MPI argues that while it knew about opioid addiction prior to the 2010 policy date, “its failure to report and refuse to fill suspicious orders ‘indicates only that MPI knew of a risk that prescription drugs could eventually be diverted into illegal channels far down the supply chain ...’ MPI contends that general awareness of the risk of addiction prior to the policy periods cannot establish the applicability of the loss-in-progress provision.” The Court agreed under Ohio jurisprudence that “mere knowledge of this risk is not enough to bar coverage under the loss-in-progress provision.”

The Court also found that the trial court erred in declaring that Acuity has no duty to indemnify in future opioid settlements or judgments. It agreed with MPI that “because Acuity owes MPI a defense in the underlying suits, a decision on the duty to indemnify should be deferred until a settlement or final judgment in the underlying suits.” The case was remanded to the trial court to grant summary judgment in favor of MPI. [Acuity v. Masters Pharmaceutical, Inc., No. C-190176, Ohio App. 1st Dist., 2020 Ohio 3440, June 24, 2020.]