The United States has endured an opioid crisis that has destroyed hundreds of thousands of lives and financially burdened families as well as state and local governments. The facts are staggering - over 100 people die every day from opioid overdose; about one third of those prescribed opioids will misuse them; and, about 10% of those people will become addicted. All the while Purdue Pharma, creator of OxyContin, as well as other opioid manufacturers, have made billions.

In a previous GAVEL post, we reported that the Sackler family, the owners of Purdue, will likely escape criminal liability for their alleged involvement in this crisis. However, just last week, pharmacy giants Walgreens and Walmart were found liable in federal court for their contribution to the opioid abuse epidemic in two Ohio counties. This first-of-its-kind verdict could serve as a harbinger for thousands of cities and counties that blame the companies for their part in the nation’s opioid crisis.

The northeastern Ohio counties of Lake and Trumbull accused CVS, Walgreens and Walmart of selling massive amounts of addictive painkillers for years without any meaningful oversight. In the trial, the pharmacies were accused of shipping opioid orders through their distribution channels despite obvious signs that the orders indicated recreational use rather than legitimate medical needs. Attorneys for the counties said in a 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. The judgment today against Walmart, Walgreens and CVS represents the overdue reckoning for their complicity in creating a public nuisance... 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."

Mark Lanier, trial counsel for the Ohio Counties, said during closing arguments that: "We're talking about something that has the ability to grab you by the throat and change your brain chemistry... It can turn a cucumber into a pickle."

Brian Swanson, counsel for Walgreens stated: "Prescribers, they have the greatest control over the spigot." Pharmacy attorneys argued that their dispensing in the Ohio counties was lawful and responsible. And like defendants in other opioid trials, they noted that controlled substances are strictly overseen by numerous regulators and medical experts, including the U.S. Food and Drug Administration, the Drug Enforcement Administration, and state medical boards and doctors, who control whether patients can obtain prescriptions in the first place.

CVS spokesman Mike DeAngelis wrote in a statement: “But the simple facts are that opioid prescriptions are written by doctors, not pharmacists; opioid medications are made and marketed by manufacturers, not pharmacists; and our health care system depends on pharmacists to fill legitimate prescriptions that doctors deem necessary for their patients.” Attorneys for the counties countered that federal law puts a “corresponding responsibility” on the pharmacist to determine that a prescription he or she fills is for a legitimate medical purpose.

The landmark verdict came after a week of deliberations following a six-week trial. The jury found that sales of prescription pain pills by the pharmacy chains contributed to a "public nuisance" in the form of the opioid crisis, validating a core legal theory which could lead to thousands of lawsuits across the country. "Today's verdict represents a milestone victory for the Lake County and Trumbull County communities, and the entire country, in the fight against the opioid epidemic," plaintiffs lawyers in multidistrict opioid litigation said in a joint statement on Tuesday.

In determining that the pharmacies were legally liable, the jury concluded that the pharmacy chains "engaged in intentional and/or illegal conduct [that] was a substantial factor in producing the public nuisance," according to the verdict form.  U.S. District Judge Dan Aaron Polster presided over the trial. He’ll decide damages in May — potentially more than $1 billion per county for addiction treatment and prevention. Other pharmacies, Rite Aid and Giant Eagle, previously settled with the counties for undisclosed sums.

The trial was one of several “bellwether” trials in the Multidistrict Litigation (MDL) that are scheduled to take place across the country. Bellwether trials are intended to test each side's case and help the parties work toward comprehensive settlements. The Ohio litigation was the first that involved pharmacies, as opposed to drug manufacturers and distributors and it was the first bellwether case to result in a verdict in the MDL. Another judgment is expected soon in West Virginia federal court and an opioid trial in Washington state court began in November. Also, a jury in New York state court is currently considering an opioid case against Teva Pharmaceuticals, Allergan PLC and a small drug distributor called And a Inc.

This case is far from resolved. Unsurprisingly, all three of the pharmacy chains swiftly vowed to appeal the verdict. Attorneys for Walmart argued in a statement that the trial "was engineered to favor the plaintiffs' attorneys and was riddled with remarkable legal and factual mistakes." They further stated that "the trial court committed significant legal errors in allowing the case to go before a jury on a flawed legal theory that is inconsistent with Ohio law."

The verdict in this case seems like a step in the right direction toward addressing this expansive problem. It’s been reported that in a span of 8 years, 10 pharmacies in the 2 Ohio counties dispensed nearly 49 million prescription pain pills. These are enough to provide about a dozen doses to each man, woman and child who lived there every 12 months.

Main Street Law Firm will continue to keep its clients and friends apprised of developments in the ongoing opioid litigation.

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