McKesson Tries to Avoid Opioid Liability
Drug distributor McKesson filed paperwork in federal court stating that its $40 billion contract with the federal government — the Department of Veterans Affairs and the Indian Health Service — to deliver medications, including opioids, and other pharmacy products, should allow it to raise the government contractor defense to liability in the recent lawsuit filed by the Cherokee Nation against McKesson, Cardinal Health, AmerisourceBergen, CVS Health, Walgreens and Wal-Mart Stores.
The Cherokee Nation lawsuit claims the drug companies were responsible for the opioid epidemic in the Cherokee Nation and seeks to hold each company liable.
The government contractor defense extends the federal government’s immunity from suits by government employees injured by defective equipment contractors who provide equipment to the government under provided specifications. The United States Supreme Court established the defense in Boyle v. United Technologies Corp (1988) 487 US 500, 101 L Ed 2d 442, 108 S Ct 2510.
The USSC in Boyle set forth a three-pronged test a company must pass to prevail on the government contractor defense.
If McKesson is allowed to proceed with its government contractor defense, McKesson must prove:
- The United States approved reasonably precise specifications;
- The equipment conformed to those specifications;
- The contractor warned the United States about any dangers in the use of the equipment that were known to the company but not to the government.
The purpose of prongs (1) and (2) is to ensure the government exercises its discretion in approving products and equipment. The final prong is to ensure that the contractor conveys all information necessary to allow the government to make a fully informed decision.
Did McKesson fully inform the government about the dangers of opioids, etc., such that they fulfilled the requirements of the final prong?