Herbert Tisher v. INSYS Therapeutics, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

HERBERT TISHER, JAMES )
STARLING, JR., and PAMELA )
STARLING, )
)
Plaintiffs, ) C.A. No. K18C-05-011 RLG
)
INSYS THERAPEUTICS, INC., )
et al. )
)
Defendants. )

Submitted: August 9, 20241
Decided: November 22, 2024

MEMORANDUM OPINION AND ORDER

On Defendant Kapoor’s Motion to Dismiss – GRANTED.

Philip T. Edwards, Esquire (argued) and Scott Himelein, Esquire, Murphy &
Landon, Wilmington, Delaware. Attorneys for Plaintiffs.

David Anthony, Esquire; Peter C. McGivney, Esquire; Michael W. McDermott,
Esquire; Brian T. Kelly, Esquire (PHV) (argued); and Mark T. Knights, Esquire
(PHV), Berger McDermott LLP, Newark, Delaware. Attorneys for Defendant John
N. Kapoor.

James E. Drnec, Esquire and Phillip M. Casale, Esquire, Wharton Levin Ehrmantraut
& Klein, P.A., Wilmington, Delaware. Attorneys for Defendant Rodney Village
Pharmacy.

GREEN-STREETT, J.

1
The transcript from the hearing in this matter was not received until September 30, 2024.
1
I. Introduction

In 2012, Insys, a Delaware corporation, gained Food and Drug Administration

(“FDA”) approval for Subsys, a fentanyl-based spray, as a treatment for

“breakthrough cancer pain.”2 Defendant Dr. John Kapoor founded Insys, and served

as its executive chairman when Subsys first debuted on the market.3 Unhappy with

the volume of sales of Subsys, Dr. Kapoor and other Insys executives launched an

aggressive campaign to push doctors to prescribe Subsys to more patients – and at

higher doses.4 Many of the resulting prescriptions were illegal, and led to addiction

problems for many patients.5 Dr. Kapoor and several Insys executives were

prosecuted and found guilty in federal court on charges related to conspiracy to

distribute Subsys improperly.6 Two patients prescribed Subsys improperly in

Delaware – Herbert Tisher and James Starling Jr. – filed the instant complaint

seeking compensation for the alleged damages they suffered due to their use of and

resulting addiction to Subsys.

2
United States v. Simon, 12 F.4th 1, 15 (1st Cir. 2021).
3
Id.
4
Id.
5
Id.
6
Id.
2
Dr. Kapoor filed the instant motion under Del. Super. Ct. Civ. R. 12(b)(2),

contending this Court lacks personal jurisdiction over him.7 Dr. Kapoor asserts “he

has no meaningful contact with Delaware.”8 This Court held oral argument on Dr.

Kapoor’s motion on April 14, 2023.9 The Court granted Plaintiffs the opportunity

to pursue limited jurisdictional discovery regarding Dr. Kapoor.10 At the conclusion

of that discovery, the parties submitted supplemental briefs, and Dr. Kapoor renewed

his Motion to Dismiss.11 As Plaintiffs have not cited specific facts tying Dr. Kapoor

to Delaware, his Motion to Dismiss is GRANTED.

II. Factual and Procedural Background

Dr. Kapoor founded Insys with the intention of developing a sublingual

spray.12 The product he helped develop came to be known as Subsys, a sublingual

spray utilizing fentanyl to provide pain relief.13 Subsys gained FDA approval as a

7
Def.’s Opening Br. in Supp. of Mot. to Dismiss, D.I. 104 (Aug. 30, 2022) (Dr. Kapoor’s motion
also included argument about subject matter jurisdiction as to a claim for negligent
misrepresentation. Plaintiffs conceded this Court lacks jurisdiction over that claim.).
8
Id. at 1.
9
D.I. 127 (Apr. 14, 2023).
10
Id.
11
See Def.’s Suppl. Reply, D.I. 184 (May 31, 2024); see also Pls.’ Suppl. Resp., D.I. 182 (May 13,
2024).
12
Simon, 12 F.4th at 15.
13
Id.

3
treatment for “breakthrough cancer pain” – spikes in pain for cancer patients who

otherwise outpace cancer pain – and entered the marketplace shortly after gaining

approval.14

Due to the highly addictive and dangerous properties of fentanyl, the FDA

limited the initial dose of Subsys to 100 micrograms, and required any prescriber to

participate in the “Risk Evaluation and Mitigation Strategy” program.15 To combat

this low dosage cap, Insys employed an aggressive marketing strategy, including

targeting doctors prescribing alternative fentanyl products and persuading those

doctors to prescribe Subsys instead.16 Notably, many of the prescribing doctors were

not oncologists and thus were unlikely to be prescribing Subsys for its FDA-

approved use.17

Concerned with sales figures and the perception that many patients were only

prescribed Subsys for a month before moving on to a different drug, Insys executives

revamped their marketing approach.18 This new approach consisted of pressuring

doctors to prescribe Subsys at higher doses; reward sales representatives for

14
Id.
15
Id.
16
Id.
17
Id.
18
Id.

4
successfully pushing higher doses; and a “speaker program,” in which doctors who

prescribed high amounts of Subsys were rewarded with compensated speaking

opportunities.19 These speaker events often had few attendees, and appear to have

served mostly as a way for Insys to funnel money to doctors Insys perceived as

“whales” – doctors writing a high volume of prescriptions for Subsys and at higher

doses.20

Insys also formulated ways for prescribing doctors to get around barriers

erected by insurance companies.21 The “Insys Reimbursement Center” led Insys

sales representatives to contact insurance companies to help facilitate the approval

of Subsys prescriptions.22 These sales representatives maintained a list of

“diagnoses and conditions that historically had prompted particular insurers to

approve Subsys.”23 Those conditions were utilized by physicians prescribing Subsys

to gain insurance approval, even if the patient did not qualify for those conditions.24

19
Id.
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.

5
Insys created a “super voucher” program, providing free samples of Subsys to

patients whose insurance otherwise would not cover the medication.25

Eventually, Insys came under federal investigation and many of its executives

were indicted on charges stemming from illegally pushing the sale of Subsys.26 Dr.

Kapoor and the other defendants were found guilty in federal court, and their guilty

verdicts were affirmed on appeal.27 In its decision affirming Dr. Kapoor’s

conviction, the First Circuit Court of Appeals noted, “[t]he record is replete with

support for the proposition that Kapoor intended physicians to write medically

illegitimate prescriptions. Kapoor sought out pill mill doctors (that is, doctors who

were notorious for their readiness to prescribe drugs regardless of medical

necessity).”28

Plaintiffs filed the Amended Complaint on July 3, 2018.29 Plaintiffs allege

Defendants, including Dr. Kapoor, executed “a reckless and negligent scheme” to

25
Id.
26
Id.
27
Id.
28
Id. at 24.
29
Am. Compl., D.I. 4 (Jul. 3, 2018); the parties agreed to stay the matter while criminal
proceedings involving several Defendants, including Dr. Kapoor, resolved. See D.I. 38 (Oct. 22,
2018); the Court lifted the stay as to Dr. Kapoor on July 18, 2022. See D.I. 99; litigation was also
stayed pending resolution of Insys’s bankruptcy filing. See D.I. 65 (Mar. 30, 2020).

6
push Subsys “to ensure huge financial gains.”30 Dr. Eva Dickinson, a Delaware-

based physician, “prescribed Subsys to Plaintiffs at dangerous and unnecessary

doses, resulting in their dependence and ultimate addiction to the drug.”31 Plaintiffs

do not contend Dr. Kapoor ever interacted with Plaintiffs or spent any time

physically in Delaware. Instead, Plaintiffs allege Dr. Kapoor, directly or through

agents, managed Dr. Dickinson and directed her to overprescribe Subsys.32

Plaintiffs argue Dr. Kapoor exercised “tight control” over Insys, and directed

sales representatives to persuade or pressure doctors into overprescribing Subsys.33

Plaintiffs point to the “speakers program” employed by Insys, which incentivized

doctors to prescribe Subsys to patients who had no need for the drug, as an example

of the tactics used by Insys to push sales of Subsys illegally.34

At the time of the events alleged in the Amended Complaint, Dr. Kapoor

resided in Arizona, as did Insys’s headquarters.35 The Amended Complaint groups

Dr. Kapoor into a category defined as the “Corporate Defendants,” but does not make

30
Pls.’ Resp. in Opp’n to Mot. to Dismiss at 1, D.I. 118 (Nov. 15, 2022).
31
Id.
32
Id. at 6-7.
33
Id. at 5.
34
Id. at 6-7.
35
Am. Compl. at 3-4.

7
any individualized allegations against Dr. Kapoor.36 Based on Dr. Kapoor’s

nonresident status in Delaware, and the lack of individualized allegations regarding

his conduct in Delaware, Dr. Kapoor moved to dismiss Plaintiffs’ claims against him

for lack of personal jurisdiction.37

Plaintiffs posited a material dispute existed as to whether Delaware’s long-

arm statute, 10 Del. C. § 3104(c), conferred jurisdiction over Dr. Kapoor.38 Plaintiffs

argued “prior to discovery, it [was] reasonable to conceive that Dr. Kapoor was

responsible for the incorporation of Insys in Delaware,” conferring jurisdiction

under §3104(c)(1).39 Plaintiffs further reasoned Dr. Kapoor caused tortious injury

in Delaware through agents connected to him via his control over Insys, conferring

jurisdiction under § 3104(c)(3).40 Alternatively, Plaintiffs asserted “Dr. Kapoor is

subject to jurisdiction under the conspiracy theory of personal jurisdiction.”41

36
See id. (Dr. Kapoor is mentioned by name twice: ¶ 17, indicating Dr. Kapoor’s address; and ¶
18, including Dr. Kapoor in the definition of “Corporate Employees.”).
37
Def.’s Opening Br. in Supp. of Mot. to Dismiss at 3-4.
38
Pls.’ Resp. in Opp’n to Mot. to Dismiss at 3.
39
Id. at 5.
40
Id. at 5-6.
41
Id. at 7.

8
This Court held oral argument on Dr. Kapoor’s Motion to Dismiss on April

14, 2023.42 The Court found Plaintiffs demonstrated Dr. Kapoor could conceivably

be subjected to the Court’s jurisdiction. Accordingly, the Court permitted Plaintiffs

to engage in limited jurisdictional discovery.43

To that end, Plaintiffs deposed Dr. Kapoor on December 1, 2023.44 Dr. Kapoor

also provided written discovery to Plaintiffs.45 Following Dr. Kapoor’s deposition,

he requested the Court conclude jurisdictional discovery and rule on his pending

Motion to Dismiss.46 Plaintiffs opposed closing jurisdictional discovery because

they intended to depose Alec Burlakoff, Dr. Kapoor’s direct agent.47 At a status

conference on January 5, 2024, the Court permitted Plaintiffs to proceed with the

deposition of Mr. Burlakoff. 48 On April 11, 2024, the Court outlined a schedule for

supplemental briefing, and ordered oral argument on Dr. Kapoor’s Motion to

Dismiss.49

42
D.I. 127 (Apr. 14, 2023).
43
Id.
44
See Plaintiffs’ Notice of Deposition of John Kapoor, D.I. 162 (Oct. 13, 2023).
45
Def.’s Suppl. Reply at 2.
46
Letter to the Court and Renewed Motion to Dismiss, D.I. 167 (Dec. 6, 2023).
47
Letter to the Court Resp. to Defendant’s Dec. 6 Letter, D.I. 168 (Dec. 12, 2023).
48
D.I. 170 (Jan. 5, 2024).
49
D.I. 177 (Apr. 11, 2024).
9
On May 13, 2024, Plaintiffs filed their Supplemental Response to Dr.

Kapoor’s Motion to Dismiss, incorporating facts learned through jurisdictional

discovery.50 Dr. Kapoor filed his reply to that filing on May 31, 2024, renewing his

argument that Plaintiffs failed to carry their burden of establishing this Court

maintains personal jurisdiction over Dr. Kapoor.51 After receiving the parties’

supplemental filings, the Court requested each party submit its position on the

appropriate standard of review following the Court’s allowance of jurisdictional

discovery.52 The parties provided simultaneous submissions to the Court on August

2, 2024.53 The Court held oral argument on Dr. Kapoor’s motion on August 9,

2024.54

III. Standard of Review

Upon a motion to dismiss under Del. Super. Ct. Civ. R. 12(b)(2), “the plaintiff

bears the burden of showing a basis for the court’s exercise of jurisdiction over the

nonresident defendant.”55 “A motion under Rule 12(b)(2) presents a factual matter,

50
D.I. 182.
51
D.I. 184.
52
D.I. 189 (Jul. 18, 2024).
53
Pls.’ Letter, D.I. 190 (Aug. 2, 2024); Def.’s Letter, D.I. 191 (Aug. 2, 2024).
54
Despite requesting the transcript simultaneous – on August 12, 2024 – with oral argument, the
transcript was not received until September 30, 2024.

55
In re Asbestos Litig., 2015 WL 556434, at *3 (Del. Super. Jan. 30, 2015) (citing Werner v. Miller
Tech. Mgmt. LP, 831 A.2d 318, 326 (Del. Ch. 2003)).
10
not a legal question alone.”56 The Court must conduct a two-step analysis to

determine if it may exercise jurisdiction over a non-resident.57 First, Plaintiffs must

demonstrate Delaware’s long-arm statute, 10 Del. C. § 3104(c), “confers

jurisdiction.”58 Second, the Court must decide if subjecting the nonresident to the

Court’s jurisdiction violates due process.59 “A nonresident defendant must have

sufficient ‘minimum contacts with [the forum state] such that the maintenance of the

suit does not offend traditional notions of fair play and substantial justice.’”60

The Court must accept all well-pleaded allegations as true, and draw all

reasonable inferences in favor of Plaintiffs.61 Once the Court permits jurisdictional

discovery, Plaintiffs “must allege specific facts supporting [their] position.”62 “10

56
Id. (citing Hart Holding Co. Inc. v. Drexel Burnham Lambert Inc., 593 A.2d 535, 538 (Del. Ch.
1991)).

57
Matthew v. FLÄKT Woods Grp. SA, 56 A.3d 1023, 1027 (Del. 2012).

58
Boone v. Oy Partek Ab, 724 A.2d 1150, 1154 (Del. Super. 1997), aff’d, 707 A.2d 765 (Del. 1998)
(citing Outokumpu Engineering Enterprises, Inc. v. Kvaerner Enviropower, Inc., 685 A.2d 724
(Del. Super. 1996)).
59
Matthew, 56 A.3d at 1027.
60
Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)).

61
Wiggins v. Physiologic Assessment Servs., LLC, 138 A.3d 1160, 1165 (Del. Super. 2016).

62
Medi-Tec of Egypt Corp. v. Bausch & Lomb Surgical, 2004 WL 415251, at *2 (Del. Ch. Mar.
4, 2004) (internal quotations omitted) (quoting Sears Roebuck & Co. v. Sears, 744 F. Supp. 1297,
1301 (D. Del. 1990)); see also Cuppels v. Mountaire Corp., 2020 WL 3414848, at *4 (Del. Super.
June 18, 2020).

11
Del. C. § 3104(c) is to be broadly construed to confer jurisdiction to the maximum

extent possible under the Due Process Clause.”63 Caution must be exercised against

“extending jurisdiction over nonresident defendants whose direct ties to Delaware

are, at best, tenuous.”64

IV. Discussion

Plaintiffs argue two subsections of the Delaware long-arm statute

independently permit the Court to exercise personal jurisdiction over Dr. Kapoor –

§ 3104(c)(1) and (3).65 The Court must consider the validity of those assertions

before turning to any concerns related to due process. The Court evaluates Plaintiffs’

arguments against the mandate and accommodation for due process required by

Delaware’s long-arm statute.

A. §3104(c)(1) does not permit the Court to exercise jurisdiction over
Dr. Kapoor

10 Del. C. § 3104(c)(1) permits a court to “exercise personal jurisdiction over

any nonresident, or a personal representative, who in person or through an agent

transacts any business or performs any character of work or service in [Delaware].”

63
Hercules Inc. v. Leu Tr. & Banking (Bahamas) Ltd., 611 A.2d 476, 480 (Del. 1992) (citing
LaNuova D & B, S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del. 1986)).

64
Wakley Ltd. v. Ensotran, LLC, 2014 WL 1116968, at *3 (D. Del. Mar. 18, 2014) (internal
quotations omitted) (quoting Ross Holding & Mgmt. Co. v. Advance Realty Grp., 2010 WL
1838608, at *15 (Del. Ch. Apr. 28, 2010)).
65
Pls.’ Resp. in Opp’n to Mot. to Dismiss at 3.

12
Plaintiffs argue Dr. Kapoor, as founder and chairman, directed the incorporation of

Insys in Delaware, subjecting him to personal jurisdiction under §3401(c)(1).66

Defendants counter the mere act of incorporating in Delaware, predating “Dr.

Kapoor’s alleged conduct by roughly ten years,” cannot confer personal jurisdiction

in this case as the act of incorporation bears no relationship to the alleged

misconduct.67

“Mere incorporation in Delaware does not give rise to specific jurisdiction.”68

Plaintiffs assert “[t]he involvement of a defendant in arranging, either directly or

through an agent, for the filing of a corporate instrument in Delaware that facilitated

transactions under challenge in litigation in this court have been repeatedly

recognized as sufficient to constitute the transaction of business under §

3104(c)(1).”69 In support of this contention, Plaintiffs cite one case from the

Delaware Court of Chancery, Sample v. Morgan.70 Sample can be distinguished

66
Pls.’ Resp. in Opp’n to Mot. to Dismiss at 4.
67
Def.’s Suppl. Reply at 6.

68
Marnavi S.p.A. v. Keehan, 900 F. Supp. 2d 377, 390 (D. Del. 2012); see also Sparebank 1 SR-
Bank ASA v. Wilhelm Maass GMBH, 2019 WL 6033950, at *3 (Del. Super. Nov. 5, 2019) (holding
a parent company choosing to incorporate its subsidiary in Delaware did not give the court personal
jurisdiction over the parent company).
69
Pls.’ Resp. in Opp’n to Mot. to Dismiss at 4.
70
935 A.2d 1046, 1057 (Del. Ch. 2007).

13
from the instant case, particularly in light of the Court of Chancery’s holding in SDF

Funding LLC v. Fry.71 The Fry court held “[t]o support the exercise of specific

personal jurisdiction, however, the Delaware entity must have been formed for the

purpose of engaging in the challenged transaction.”72 In Sample, the underlying

claim involved a certificate amendment filed in Delaware.73 As the defendants filed

a corporate instrument in Delaware “that facilitated transactions under challenge in

litigation,” the court could exercise jurisdiction appropriately under §3401(c)(1).74

Although disputed, Plaintiffs have presented credible evidence that Dr.

Kapoor played at least some part in incorporating Insys in Delaware. That act alone,

however, does not comport with the requirement that the formation of the corporate

entity be “for the purpose of engaging in the challenged transaction” to permit

jurisdiction. Plaintiffs have not alleged any facts similar to those presented in

Sample to suggest the incorporation of Insys in Delaware played any part in the

actions giving rise to Plaintiffs’ claims. As the act of participating in the

incorporation of an entity in Delaware alone cannot place Dr. Kapoor within the

71
2022 WL 1521309, at *2 (Del. Ch. May 13, 2022).
72
Id. (emphasis in original).
73
Sample, 925 A.2d at 1057.
74
Id.
14
Court’s jurisdiction, the Court cannot exercise personal jurisdiction over him under

§3401(c)(1).

B. Plaintiffs fail to show specific facts to confer personal jurisdiction
under §3104(c)(3)

10 Del. C. § 3104(c)(3) permits a court to “exercise personal jurisdiction over

any nonresident, or a personal representative, who in person or through an agent

causes tortious injury in the state by an act or omission in [Delaware].” Plaintiffs

posit “Dr. Kapoor, through an agent, caused tortious injury in the state of

Delaware.”75 Plaintiffs further assert “Dr. Dickinson’s tortious conduct towards

Plaintiffs in the State of Delaware shall be imputed to Dr. Kapoor.”76 In sum,

Plaintiffs argue Dr. Kapoor’s participation in a conspiracy centered on incentivizing

doctors to overprescribe Subsys renders him liable to personal jurisdiction in any

state targeted by that conspiracy, including Delaware.

Accepting as true Plaintiff’s assertion that co-conspirators are akin to agents

for purposes of the long-arm statute,77 Plaintiffs must still show the conspiracy in

which Dr. Kapoor engaged has a tangible connection to the injuries Plaintiffs

suffered. Plaintiffs point to several possible connections, but have failed to provide

75
Pls.’ Resp. in Opp’n to Mot. to Dismiss at 5.
76
Id.

77
See Hercules at 481–82.

15
evidence supporting most. Plaintiffs cannot, for example, draw any direct

connection between Dr. Dickinson and Dr. Kapoor. Plaintiffs cannot demonstrate

Dr. Dickinson participated in the speaker program, or that her account fell under Dr.

Kapoor’s direct supervision. Dr. Kapoor’s connections to Frank Serra, a former

Insys regional sales manager, do little to aid Plaintiffs’ case given Mr. Serra’s

employment with Insys ended before the incidents giving rise to Plaintiffs’ claims

occurred.

Plaintiffs allege specific facts showing (1) Insys sold Subsys in Delaware; (2)

Insys utilized fraudulent tactics to incentivize doctors to overprescribe Subsys in

many states; (3) Dr. Kapoor likely played some role in approving those fraudulent

tactics; (4) some Insys executives monitored Dr. Dickinson’s account among a list

of other accounts; (5) Dr. Kapoor oversaw the accounts of some doctors; (6) Dr.

Dickinson participated in Insys’s Super Voucher program; (7) Dr. Dickinson

prescribed Subsys to Plaintiffs; (8) Dr. Dickinson should not have prescribed Subsys

to Plaintiffs; and (9) Plaintiffs suffered injuries resulting from Dr. Dickinson’s

prescribing of Subsys. Plaintiffs do not allege specific facts showing any direct

connection between Dr. Kapoor and Delaware. Nor do they allege specific facts

showing a connection between Dr. Kapoor, his agents or co-conspirators, and

Delaware.

16
Plaintiffs essentially present the beginning and end of the story, and ask the

Court to exercise personal jurisdiction absent any details in between. Plaintiffs

demonstrate Dr. Kapoor participated in a conspiracy, and that injuries occurred that

could have resulted from that conspiracy. Plaintiffs have not demonstrated any direct

connection between Dr. Kapoor and Dr. Dickinson – or any intermediaries

connecting the two.

Plaintiffs note Insys sales executives identified Dr. Dickinson as one of the

top prescribing doctors for Subsys.78 Plaintiffs argue this fact, coupled with

testimony that Dr. Kapoor often took an interest in the accounts of other top

prescribing doctors, evidences a sufficient connection. Even if the Court accepts as

true the notion that Dr. Kapoor personally monitored Dr. Dickinson’s account – a

fact for which Plaintiffs have provided limited factual support – Plaintiffs have not

provided any evidence that Dr. Kapoor’s alleged monitoring of Dr. Dickinson

equated to control, or even contact. Plaintiffs were given the opportunity to pursue

evidence of this connection in jurisdictional discovery. Their inability to find that

evidence now prevents this Court from exercising personal jurisdiction under

§3104(c)(3).

78
Pls.’ Suppl. Resp. at 8-9.

17
C. Plaintiffs fail to make the requisite factual showing that personal
jurisdiction is appropriate under the conspiracy theory

Plaintiffs assert that “the civil conspiracy count alone established personal

jurisdiction in Delaware.” 79 Plaintiffs’ contention that this Court exercising personal

jurisdiction over Dr. Kapoor does not violate Dr. Kapoor’s right to due process rests

on the conspiracy theory of personal jurisdiction. To succeed under that theory,

Plaintiffs must make a factual showing that:

(1) a conspiracy to defraud existed; (2) the defendant was a
member of that conspiracy; (3) a substantial act or substantial
effect in furtherance of the conspiracy occurred in the forum
state; (4) the defendant knew or had reason to know of the act
in the forum state or that acts outside the forum state would
have an effect in the forum state; and (5) the act in, or effect
on, the forum state was a direct and foreseeable result of the
conduct in furtherance of the conspiracy.80

Dr. Kapoor’s conviction in federal court for violating the Racketeer

Influenced and Corrupt Organizations Act (“RICO”) clearly establishes him as a

member of a conspiracy to commit fraud.81 Dr. Kapoor, along with other Insys

executives, illegally incentivized pain management doctors to write off-label

prescriptions for Subsys at doses above the FDA-approved starting dose.82 At least

79
See Pls.’ Suppl. Resp. at 10.
80
Istituto Bancario Italiano SpA v. Hunter Eng’g Co., 449 A.2d 210, 225 (Del. 1982).

81
See United States v. Simon, 12 F.4th 1, 21 (1st Cir. 2021).
82
Id. at 16-18.

18
one doctor, Dr. Dickinson, prescribed Subsys in Delaware to patients whose medical

conditions did not necessitate a Subsys prescription.83 If Insys incentivized Dr.

Dickinson to overprescribe Subsys to her patients, Insys would have known there

would likely be an effect in Delaware. The resulting effects on anyone

inappropriately prescribed Subsys, a highly addictive narcotic, are both direct and

foreseeable results.

Plaintiffs have not shown, however, that “a substantial act or substantial effect

in furtherance of the conspiracy occurred in [Delaware].” The connection between

Dr. Dickinson to the rest of the conspiracy has not been identified. Plaintiffs have

provided no evidence of which sales representatives contacted her; which Insys

employees recruited her or provided her incentives to overprescribe; or any tangible

connection between her and any of the known conspirators.

Plaintiffs allege “Insys representatives discussed with Mr. Tisher … the

propriety of his Subsys prescriptions and showed him how to use it.” 84 This

allegation alone does not show any improper activity by Insys in connection to Dr.

Dickinson. Even if it did, there are no facts to support a connection between Dr.

Kapoor and this unnamed Insys employee beyond their shared employment with

83
Pls.’ Suppl. Resp. at 8-9.
84
Compl. at 10.

19
Insys. More must be shown to demonstrate the unnamed employee participated as

a co-conspirator. As Plaintiffs cannot tie the conspiracy to Delaware factually,

beyond showing that Subsys sales occurred in Delaware, they cannot satisfy the

requisite elements to establish jurisdiction under the conspiracy theory.

V. Conclusion

As this Court permitted jurisdictional discovery, Plaintiffs must show more

than mere allegations in support of their complaint against Dr. Kapoor. Plaintiffs

must show specific facts permitting this Court to exercise personal jurisdiction over

Dr. Kapoor. Plaintiffs fail to provide sufficient facts to support the exercise of

personal jurisdiction over Dr. Kapoor in Delaware. Accordingly, Dr. Kapoor’s

Motion to Dismiss is GRANTED.

IT IS SO ORDERED.

20