CLEVELAND (Legal Newsline) - Pharmacies defending themselves against claims they filled excessive numbers of opioid prescriptions have asked the judge overseeing federal multidistrict litigation to again order the state of Ohio to turn over data showing the specific physicians and pharmacies that supplied narcotics into the state.
Several large pharmacy chains including CVS, Walgreens and Rite Aid argue the Ohio Board of Pharmacy’s OARSS database contains information that could show the bulk of the excessive prescriptions were actually filled by smaller pharmacies that aren’t defendants in the litigation.
Ohio was ordered to provide the data in preparation for bellwether trials but U.S. District Judge Dan Polster withdrew the order after the U.S. Court of Appeals for the Sixth Circuit struck dispensing claims the judge had allowed the plaintiffs, a pair of Ohio counties, to add to their lawsuits months after a deadline had expired. Judge Polster responded by ordering plaintiff lawyers to tee up trials over dispensing claims on behalf of two new Ohio counties.
The pharmacies filed an emergency motion with the Sixth Circuit last week seeking to remove the judge from the MDL. In the meantime, they have also asked Judge Polster to reinstate his earlier order requiring Ohio to turn over the OARSS data, saying it is “critical” to defending dispensing claims. The OARSS database includes all controlled substance prescriptions in Ohio, including the name and address of the pharmacy that filled the prescription and the medical professional who wrote it.
The pharmacies say the data will allow them to identify over-prescribers, pill mills and other dispensers plaintiffs chose not to sue. The pharmacies are being sued for creating a “public nuisance” by failing to intercept suspicious and excessive prescriptions. They say the OARSS data may show that smaller non-defendant pharmacies and physicians actually created the problem.
Ohio already provided the defendants with a database in which individual patients were anonymized with a unique identifying number that allows them to be tracked from doctor to doctor and pharmacy to pharmacy. But the state has refused to provide data identifying the doctors and pharmacies those anonymous patients used, making it impossible to identify “doctor shopping” and the pharmacies that facilitated it. The pharmacies themselves cannot identify patients who used multiple doctors to obtain prescriptions from multiple pharmacies, since they only know who their own customers are.
Ohio has argued it can’t provide the information because of privacy concerns. The government plaintiffs, however, didn’t express such concerns when they won a sweeping order from Judge Polster to turn over more than 20 years of nationwide prescription data that could have been used to identify millions of individual patients. That order was reversed by the Sixth Circuit in February.
Under the current trial plan, pharmacies have been ordered to provide prescription data for the entire state of Ohio. They have asked the judge to order Ohio to provide similar statewide data from OARSS.
Judge Polster has previously told Ohio it must provide the data the pharmacies are seeking, at one point suggesting the state was more concerned about the proprietary nature of the data than privacy. New York State provided a similar database to defendants facing opioid claims in state court there. The first trials originally scheduled for March have been postponed due to the coronavirus pandemic.
The bellwether trials on dispensing claims will feature Lake and Trumbull counties in Ohio. The pharmacies said in their filings that federal government data, which shows how many pills were distributed in a given region, indicates the pharmacy defendants dispensed 58% of the pills between 2006 and 2014 while non-defendants dispensed 42%, or more than 71 million opioid dosage units.