Florida Justice Reform Institute, Logo


Moody's opioid lawsuit imperiled as bill stalls in Senate

|04/21/2019 12:29 PM EDT

Ashley Moody Moody is seeking access to patient data from Walgreens and CVS to show that they filled prescriptions at above-normal volumes in regions of the state.

TALLAHASSEE — A business lobbyist has moved to block a bill that would help a state opioid lawsuit against drugmakers and pharmacies—including Purdue Pharma, Walgreens and CVS — jeopardizing a potentially billion-dollar case against the industry.

With only two weeks left in the legislative session, a bill to give Attorney General Ashley Moody access to certain patient-level information from the state’s drug database is stuck after Senate President Bill Galvano expressed concerns about patient privacy. Without the data, it could take Moody years and millions of dollars to gather evidence against the pharmacies.

Galvano hasn't declared the bill over for the session, but Moody is running out of time. The bill has stalled before the Rules Committee, its final panel before reaching the Senate floor, and isn’t on the schedule for a hearing Tuesday.

Rules Chairwoman Lizbeth Benacquisto (R-Fort Myers) did not respond to a request for comment. Moody spokesperson Lauren Schenone said her office was surprised the measure wouldn’t be heard by the committee.

Galvano said patient-level data could fall in into the wrong hands if the measure passes.

“It does appear there are privacy concerns with the bill,” Galvano told POLITICO Friday.

Florida sued opioid manufacturers and distributors a year ago, accusing the industry of racketeering and negligence in thousands of deaths connected to the painkiller. Former Attorney General Pam Bondi amended that lawsuit in November to include Walgreens and CVS.

Similar lawsuits are advancing in other states, putting the drug industry in a defensive crouch. In March, manufacturer Purdue Pharma settled with Oklahoma, agreeing to pay $270 million for its role in opioid deaths and addictions in the state. Florida’s lawsuit is larger in scope and could have an even bigger payout.

Moody is seeking access to patient data from Walgreens and CVS to show that they filled prescriptions at above-normal volumes in regions of the state.

“Walgreens and CVS tracked which of their stores were top sellers of particular drugs,” state lawyers wrote in an amended complaint filed in November. “But instead of using that information and data to prevent shipments of suspicious quantities or filling suspicious prescriptions, Walgreens and CVS joined the race to sell as many opioids as possible.”

If the Legislature fails to pass her patient data bill, Moody would be forced to individually subpoena each of the more than 1,500 Walgreens and CVS pharmacies in the state, an endeavor her office claims could cost millions of dollars and take months if not years.

Moody’s desire for a more certain and faster outcome to the lawsuit has put her in an uncomfortable position as a Republican as she goes head-to-head with big business. In the Legislature, she’s run up against William Large, president of the Florida Justice Reform Institute and the main lobbyist fighting the database bill.

When the patient database was approved in 2009, lawmakers promised business that it wouldn’t be used to sue companies, Large said. If passed, Moody’s measure could jeopardize not only patient privacy but the business community’s trust in Florida lawmakers, he said. Large is circulating an example of the type of information that could made public by the bill.

“In my opinion, if there was a Democratic attorney general, this bill never would have seen the light of day,” Large told POLITICO. “Because General Moody’s in the same party as the majority in the House and Senate, I think people are just going along with this and they haven’t stopped to ask very important questions about privacy, about the chilling effect this would set for Florida and about lawsuits.”

Large’s group is part of a nationwide network established by businesses, including insurers and drug companies, that advocates for business-friendly judges and lobbies to erect barriers to consumer lawsuits and limit payouts for damages.

The membership organization does not include Walgreens or CVS and has not been hired by those companies, but a member of Large’s board is a Walgreens lobbyist based in Chicago.

Moody’s patient-level records would protect patient privacy by assigning a key to each patient in lieu of their name. But it would include the patient’s birth year, the city and county in which they reside, and their ZIP code.

The patients might not remain anonymous for long, said Aaron Roth, a data privacy expert at the University of Pennsylvania. He pointed to a now-famous example of a student accessing a Massachusetts governor’s private health details by cross-referencing anonymized hospital data with voter registration records.

“Once the data is out there it’s out there,” Roth said. “So even if it’s not obvious what the cross-reference is with this data set right now, maybe next year something else will come along."

A court-issued protective order would prevent disclosure of the information to the public, Schenone said, and experts have told the attorney general’s office it would be “nearly impossible” to identify an individual patient with the data.

“Unlike the study cited, we are not getting gender or date of birth,” Schenone said. “The only ones who will receive this information will be the defendants, and in the case of the pharmacy defendants they already have more detailed information from when they filled prescriptions."

Without the database, "we will be forced to seek the information from those defendants. That will be expensive, cause delays, and in the end be only protected by that same protective order,” she said.

The House is slated to hear the bill on the floor Tuesday after postponing it last week. The Senate could take up the House bill if it passes.