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.
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As much as I loathe cartels, I don’t see how pharmacies are the problem with opioids. Are they supposed to clinically review each prescription? There is a big problem with opioid but fining pharmacies as a public nuisance isn’t addressing the problems (pill-pushing big pharma, pill mill doctors, for profit medicine and insurance that reduces care to drug intake, mental health, addiction as a crime instead of a medical issue, etc.).
They’re pharmacists, not physicians. As far as I know the only non-physicians allowed to practice medicine are insurance company folks who deny coverage for everything that comes to their work station.
I would guess that it’s not so much individual pharmacists who are at fault, as the companies whose sales data would have shown pretty obviously that waaaay more pills were being sold in these areas than could possibly be legitimate. However I haven’t followed the arguments in the case, so I might be off on that.
I suspect that the drug companies were well aware of the number of pills sold, particularly those for whom drug reps/salespeople were paid commission or bonuses based on sales.
Agree, but drug companies are not the pharmacies.
Technically true . . . . just as the Illegal Drug Cartels are not the first-instance actual peasant growers of the actual coca plant leaves.
But the Illegal Drug Cartels are as crucial a link in the chain as any other for gathering in and aggregating the upstream drug flows and then redispersing them again to the downstream final consumers.
And the Legal Drug Store Cartels, like Walgreens and CVS and etc. are a crucial link in the chain of getting the pills from Sackler Incorporated to the millions of individual buyer-user-customers who go to one or another Legal Drug Store Cartel outlet to get their prescribed Sacklertocin and Sacklercontin pills.
Controlled substances require extra scrutiny. I take a number of prescriptions, one of which is Adderall. All my other scripts I get three months at a time and are on an automatic-refill. My Adderall has to be prescribed every month anew, no refills. Previously it had to be a paper script each time, but the (PA) state law changed and now my doctor has to electronically request it from my pharmacy each month. If pharmacies in these two counties had prescribed tens of millions of these opioid pills, I have a hard time believing that every single script got that level of scrutiny and passed the test. It is definitely on these pharmacies as much as it is on the doctors and pharmaceutical companies.
I do not know about the specific situation in the USA, but at least in Europe, yes, they indeed have a responsibility to review prescription for such things as:
a) If the prescription contains medicines that interact in worrisome ways, or if the pharmacist knows that the patient also takes another “incompatible” drug prescribed by another physician, he must check with the doctor to get the prescription altered.
b) If the dosing seems inadequate, e.g. too high for a child or a small person. Same procedure, contact the physician and get the prescription adjusted if necessary.
c) If the quantity prescribed seems too high, or the duration too long. Ditto.
Pharmacists are licensed medical professionals (in some cases they are allowed to perform such medical acts as blood tests and vaccinations), liable for what they sell and the mistakes they commit. And yes, they must be on the lookout for falsified prescriptions or scrips from prescriptions mills — and are supposed to call the entity responsible to crack down on drug trafficking when they detect something fishy.
As for CVS, Walgreen and co, they have no excuses. They have the necessary ERP/SCM/WMS to manage inventories, supply their outlets, track transactions, and determine sales composition and trends on a store by store basis. They knew exactly what was happening; they just chose to ignore what was an entire forest of red flags.
I guess CVS et all could conduct studies about their sales across all stores, but that is not up to them IMO.
Distributors/Manufacturers know dang well where sales are 100x other areas, and traditionally have done nothing but supply more.
Occasionally, the perps get a hand slap that is easy to absorb, given the profits.
I saw this back in the 70’s, and 80’s before I got out of the industry. Perhaps things have changed, but…
To think that CVS et all and Big Pharma don’t know how many pills are sold, where the pills are sold, and the profit is the highest folly.
These folks are well aware of sales to the pill and profits to the penny.
Well gosh. It really is such a public nuisance having all those dead bodies pile up like that. Too bad all the tactics against overdose, like multi district litigation, are toothless. I agree with the defendants, pharmacies in this case aren’t guilty of anything because they are not mandated to protect and defend – they are licensed to dispense prescription drugs authorized by doctors. Doctors themselves would be a better target. This litigation is a big mess. But I’d certainly say that fentanyl is public enemy numero uno. WTF? Where is all the action required to stop the production and distribution of fentanyl? Maybe we should be suing the CIA, the Chinese, and why not every American city for allowing the squalor that creates drug addiction? We desperately need legislation to cure society at every level. Starting with a dragnet for all the sources of fentanyl. That would be the difference required. We need to respond to a dangerous poison, not some absurd idea of dead people being a “public nuisance.” Or maybe we should start allowing street people to go for it; let them snort anthrax.
You forgot invariant #2 – go die.
Reading my mind. It would seem to me that with our plethora of mighty law enforcement agencies, the flow of cheap fentanyl could be stemmed, but I’m not seeing this as a priority. Someone profits from the huge amounts of the deadly stuff. Not much shakin goin on in the prescription drug world these days.
Thanks for keeping us updated on the various opioid lawsuits. Jerri-Lynn.
It’s rather ironic that Walgreen’s says:
So what about the medicine-that-shall-not-be-named? (BTW, does using the proper name cause problems for NC, e.g., censorship?)
I’ve seen reports of pharmacies around the country refusing to fill such prescriptions. The hypocrisy is not surprising, but it is stunning.
I have been caught by the Post Eater when I have tried to mention that very drug. The one that rhymes with “pectin.”
You could always try respelling it in a way that humans can phonetically decode, but that computers can’t yet. I will give a demonstration of what I mean, and we will see if it gets through or not.
Do you mean . . . uhh . . . Eye vermektin?
That awful stat that the manufacturing and distribution of opioids being responsible for 70 percent of overdose deaths makes me want to know more about what percentage of prevention money is thrown at stopping its flow versus the other 30 percent of drugs responsible for overdose deaths. I can’t help but compare it to airport security theater. Walking through airport lines to scanners, getting barked at by the local lord of our personal objects to spend time separating belts and shoes and electronic devices putting us more in contact with one another and each other’s air as Omicron gets added to delta (insert airline joke), while no test and tracing occurs. The deliberate misallocation of resources towards smaller risk problems because addressing true problems is too financially risky for the higher ups. Are these court cases a crack in that?
So one could assume … all the squillions spent on the war on illegal drugs was all about market share – ???? – because the health of the consumer[tm] does not seem a concern, in either case, albeit in the corporate sector I could imagine one would not want too high a death rate over a period of time – sorta like loan defaults – and would be managed by younger consumers[tm] entering the market to replace the dead.
For some reason due to track records and all I have do issues with envisioning meetings where this is discussed.
When does FedEx get popped for distribution of opioids? FedEx would receive an unmarked Ryder truck from cardinal pharmaceuticals full of boxes of opioids. At first, FedEx put it on a 727 feeder plane, but volume got to high and got worried if they ever had an accident with that jet how would the explain a plane full of drugs going to small towns in Kentucky, Ohio, and Iowa. FedEx shifted over to a prop plane because of lower attention level than a jet. Shipped tons of opioids for years. Senior people at FedEx knew this, just like they knew Craig Petties had a criminal organization infiltrate the hub of Memphis to distribute cocaine and marijuana.
So, in about ten years, after the lawyers have feasted on the opiate manna from heaven, we can expect the pharmacy chains to settle out of court, admit no liability and as a penalty, provide 50% off on every opiate prescription for the next 2 years.
Ain’t capitalism great?
Or just close their pharmacy windows permanently. They don’t generate much net profit, they draw in customers to buy the stuff that does.
But if they close their pharmacy windows, what will draw in customers to buy the stuff?
I wonder why someone does not go after the insurance payers. Seems they might be even better positioned for some liability with respect to facilitating the opium epidemic.