HOUSTON - Today, the 14th Court of Appeals dismissed two appeals brought by opioid distributors, finding it lacked jurisdiction over a lower court’s ruling denying the defendants’ Rule 91a motions to dismiss.
The plaintiffs in the two cases are Bexar County and Dallas County respectively. The pharmacy defendants include CVS, Walgreens, Walmart, ProCare and Omnicare.
Court records show the defendants sought to dismiss the opioid lawsuits because the plaintiffs failed to file an expert report – a requirement in Texas when bringing a health care liability claim.
The trial court denied the motions, describing them as Rule 91a motions to dismiss.
The 14th Court agreed that the motion the trial court denied was a Rule 91a, “thus making the trial court’s order unappealable.”
“Consequently, this court lacks appellate jurisdiction regarding the trial court’s order denying appellants’ Rule 91a motion,” the opinions state. “Appellee’s motion to dismiss is granted, and the appeal is dismissed.”
The counties allege the pharmacy defendants wrongfully distributed too many prescription opioid medications to patients of Texas doctors.
The distributors, in turn, moved to dismiss under the Texas Medical Liability Act, arguing that the plaintiffs’ dispensing claims are health care liability claims, and that, as a result, the counties were required to serve expert reports within 120 days of each pharmacy defendant’s original answer.
“The District Court erred by not dismissing Plaintiff’s dispensing claims with prejudice,” the defendants’ brief states. “Plaintiff’s dispensing claims are based on the alleged improper and unsafe dispensing of prescription medications, and therefore they meet the TMLA’s three-part definition of a health care liability claim.
“In addition, expert health care testimony is needed to prove and refute Plaintiff’s claims.”
In their briefs, the plaintiffs argued that the counties did not file suit against a health care provider for treatment, or lack of treatment, under the TMLA.
Case Nos. 14-23-00116-CV and 14-23-00113-CV