Michigan Supreme Court/Hall of Justice in Lansing. (Jon King/Michigan Advance)

The fate of Attorney General Dana Nessel’s crusade to investigate a major producer of insulin for price gouging will be the subject of oral arguments before the Michigan Supreme Court in November.

Justices plan to hear the case starting at 9:30 a.m. Wednesday, Nov. 5. The court also plans to hear oral arguments in six unrelated cases.

In Attorney General v. Eli Lilly and Company, Nessel sought to investigate the drug manufacturer to determine if its pricing practices for insulin violated the Michigan Consumer Protection Act.

Nessel petitioned the Ingham Circuit Court for civil investigative subpoenas under the act, but, in a separate complaint filed with the court, she also filed a motion for a declaratory judgment. The motion asked a judge to preliminarily hold that her investigation was not barred by the act’s exemptions for conduct already authorized by a regulatory agency, the state or federal government.

The attorney general noted in her motion that the state viewed Nessel’s interpretation of the act as out of step with the Michigan Supreme Court’s decisions in Smith v. Globe Life Insurance Company and Liss v. Lewiston-Richards Inc. Nessel asserted that both of those cases were wrongly decided.

Eli Lilly said that was a poor read of the act, and asked the circuit court to dismiss the case. The court agreed with Eli Lilly, a decision that Nessel appealed to the Michigan Court of Appeals.

Nessel also attempted to bypass the appellate court and take the case straight to the high court. Justices rejected that attempt and placed the case back before the Court of Appeals.

The appellate court affirmed the circuit court’s decision to dismiss the case in an unpublished opinion, which means the opinion was not binding on the lower courts or necessarily instructive to the Michigan Supreme Court.

Back before the high court, Nessel is asking the justices to determine whether she has a claim that can be adjudicated in state court, and whether she needs to do so under the auspices of the Michigan Consumer Protection Act for the case to move forward.

The court has also been asked to determine whether the precedential cases in Smith and Liss were correctly decided, and if not, whether they should be retained under the doctrine of stare decisis, a maxim holding that decisions in precedential cases are settled law and are the guidestar for similar unsettled cases.

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