By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Last week, in the first opioids jury verdict, to be handed down an Ohio jury found CVS, Walgreen’s, and Walmart liable for contributing to the opioids epidemic.
The lawsuit is part of the opioids Multidistrict Litigation (MDL) presided over by federal district court Judge Dan Polster, which consolidates cases filed by more than 3000 communities against drug distributors, manufacturers, and pharmacy chains. MDLs are created by placing complex cases involving common issues of fact under the supervision of one judge (see Opioid Lawsuits: DoJ Seeks to Participate in Settlement Talks for more detail on the MDL procedure).
Attorneys for two Ohio counties, Lake and Trumbull, argued that the chains failed to stop filling false prescriptions and to prevent opioids from flooding the counties. Plaintiffs successfully claimed that by supplying the addictive painkillers, the pharmacy chains created a public nuisance – which it cost each county more than $1 billion to clean up.
The number of pills shipped to these two Ohio counties alone was eye-popping. The Wall Street Journal reports (based on government data), that between 2006 and 2012, more than 80 million opioid pills were shipped to Trumbull County – population less than 200,000- while 60 million opioid pills were shipped to Lake County – population approximately 230,000.
According to the WSJ:
The verdict, delivered after a six-week trial, came in a so-called bellwether case that attorneys elsewhere have watched closely. Similar cases across the country continue to play out against pharmaceutical manufacturers and distributors, but Tuesday’s verdict was the first against deep-pocketed pharmacy chains.
Bellwether cases typically don’t carry precedential weight, but lawyers on similar cases across the country often use them as guideposts for settlement talks.
The Ohio jury decided the liability issue only. Judge Polster will determine what damages the pharmacy chains must pay. In a press conference following the verdict, plaintiffs’ attorney s for the two counties said they would ask for $1.1 billion and $1.3 billion respectively, according to the WSJ.
Public Nuisance or Not?
This verdict followed significant recent legal setbacks earlier in November, challenging the public nuisance theory that forms the basis for many opioids claims. The Oklahoma Supreme Court – the state’s highest court – voted 5-1 to overturn a $465 million judgment rendered against Johnson & Johnson in a 2019 bench trial. Separately, a California court dismissed public nuisance claims against four drugmakers including Johnson & Johnson and Teva Pharmaceuticals (see Public Nuisance or Not? Opioids Litigation Roundup).
According to the Journal:
Although judges in opioid cases in Oklahoma and California recently issued judgments against plaintiffs’ public-nuisance claims in cases involving drugmakers, some legal experts said it was difficult to say whether the Ohio case could meet a similar fate on appeal. Public-nuisance laws vary by state, adding to the possibility of different results in different jurisdictions.
“The public-nuisance theory in general is pretty novel and untested as it applies to the sale of controlled substances,” said Elizabeth Burch, a University of Georgia law professor. “We’re so early in the overall distribution that we don’t know whether these are outliers or trendsetters.”
Unsurprisingly, plaintiffs’ attorneys applauded the jury’s verdict. Again, over to the WSJ:
“For decades, pharmacy chains have watched as the pills flowing out of their doors cause harm and failed to take action as required by law,” they said in a joint statement. “Instead, these companies responded by opening up more locations, flooding communities with pills, and facilitating the flow of opioids into an illegal, secondary market.”
Lawyers for the companies disagreed and vowed to pursue appeals. According to the WSJ:
Michael DeAngelis, a spokesman for CVS Health Corp., said the company strongly disagreed with the verdict. “Pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat actual patients in need,” he said, referring to the Drug Enforcement Administration and the Food and Drug Administration.
Walgreen’s issued a statement after the trial, outlining arguments it will undoubtedly raise on appeal:
We will appeal this flawed verdict, which is a reflection of a trial that was engineered to favor the plaintiffs’ attorneys and was riddled with remarkable legal and factual mistakes.
Among the many problems during this trial, the judge allowed it to continue after a juror violated court rules by conducting her own research and sharing it with other jurors. The judge even said that in his 22 years on the bench he had never seen a juror do “anything like” this, and we agree with the plaintiffs’ own lawyer, when he said it was his “ethical obligation” to call for a mistrial because of this juror misconduct. Additionally, this verdict is out of step with courts around the country that have rejected plaintiffs’ novel “public nuisance” liability theories in opioid lawsuits in Connecticut, Delaware, Illinois, California, Oklahoma, North Dakota, and South Dakota, to name a few.
Plaintiffs’ attorneys sued Walmart in search of deep pockets while ignoring the real causes of the opioid crisis—such as pill mill doctors, illegal drugs, and regulators asleep at the switch—and they wrongly claimed pharmacists must second-guess doctors in a way the law never intended and many federal and state health regulators say interferes with the doctor-patient relationship. As a pharmacy industry leader in the fight against the opioid crisis, Walmart is proud of our pharmacists, who are dedicated to helping patients in the face of a tangled web of conflicting federal and state opioid guidelines.
What Happens Next?
Despite the legal posturing on both sides, this verdict pushes all involved in these lawsuits further down the settlement path. According to the New York Times:
“It’s the first opioid trial against these major household names,” said Adam Zimmerman, who teaches mass litigation at Loyola Law School in Los Angeles. “They have been the least willing group of defendants to settle, so this verdict is at least a small sign to them that these cases won’t necessarily play out well in front of juries.” It could prod some pharmacy defendants to consider settling rather than going to trial, he said.
Now, while the Ohio verdict goes some way towards rebalancing recent rejections of the public nuisance theory for opioids claims by Oklahoma’s higher court and a California court, remember that public nuisance claims are based on state law, so that one’s state’s rulings are neither relevant nor binding on another. In terms of the overall progress of litigation, it’s still early days yet, and I stand by what I wrote in my post from earlier this month (linked to above):
I feel like I’m sitting down to a performance of Die Walküre or perhaps Siegfried, having only heard Das Rheingold. These lawsuits are far from over and the fat lady has only begun to sing.
Zimmerman appears to concur in my assessment. Per the NYT:
But Mr. Zimmerman also noted that the opioid lawsuits, which span the country and are scheduled to go to trial in a number of state and federal courts, still have a long way to go.
“It’s more like there are many different ballgames going on at once, each with slightly different rules, and we’re in the early innings of almost all of them,” he said, adding that because each state has its own public nuisance law, the three recent outcomes may have little legal effect on upcoming cases.
So, that’s roughly where the litigation stands. What about the larger problem: opioids overdoses? And their impact on ravaged communities?
Alas, the NYT also makes clear that the U.S. public health system, aided and abetted by our political overlords, continues to fail victims of the opioids crisis:
But even as thousands of opioid cases, the first of which were filed in 2014, lumber along, the urgency of getting help to opioid-shattered communities has not slowed. New federal data released last week show overdose deaths from opioids have reached record levels during the pandemic, driven by soaring fatalities from illegal opioids such as heroin and street fentanyl.
The WSJ reports numbers that reinforce that point:
Opioids were involved in more than 70% of the nearly 841,000 U.S. drug overdose deaths since 1999, according to data from the Centers for Disease Control and Prevention. More than 100,000 fatal overdoses occurred in the 12-month period ended in April, with three-quarters involving opioids and driven largely by fentanyl, CDC data show.