CLEVELAND (Legal Newsline) - Plaintiff lawyers are employing a familiar tactic in a closely watched trial that started in federal court in Cleveland this week, pitting a pair of Ohio counties against four pharmacy chains they accuse of having caused the “public nuisance” of opioid addiction and death. Having admitted on the front end that they won’t present any evidence of specific narcotic prescriptions the pharmacies shouldn’t have filled, lawyers led by Houston attorney Mark Lanier are instead trying to convince jurors it is the job of the pharmacies to prove they didn’t let improper prescriptions slip through.
In tort lawsuits, the burden of proof is normally on the plaintiffs, who decide who to sue and under what legal theories. But plaintiff lawyers have long since learned that they can subtly shift the argument, especially when suing seemingly faceless corporations, by introducing evidence that the companies knew of a problem and did nothing to address it.
That’s exactly what happened in the first two weeks of trial against CVS, Walgreens, Walmart and Giant Eagle, a regional grocery chain that operates pharmacies in its stores. Witness after witness described how pharmacists filled hundreds of thousands of opioid prescriptions containing “red flags” indicating they might be suspicious, without documenting how they investigated or resolved the problems. Instead of telling jurors about a specific prescription that was improperly filled, plaintiff lawyers are trying to convince jurors the “public nuisance” was the failure to keep records proving none of the prescriptions were.
The defendants naturally disagree that they should be forced to prove a negative. They tried to get the lawsuits by Lake and Trumbull counties dismissed for lack of evidence, but U.S. District Judge Dan Aaron Polster, who is overseeing federal multidistrict opioid litigation by thousands of municipalities nationwide, refused. He allowed the plaintiffs to pursue a theory of “aggregate proof,” using paid experts to offer opinions to jurors that the drug chains filled too many suspicious prescriptions according to statistical methods they created for the trial.
Judge Polster has made it clear since he was assigned to the MDL that he preferred the defendants to pay billions of dollars to settle the lawsuits against them, and even threatened the pharmacies with bankruptcy if they dared to take the cases against them to trial. When the defendants refused to settle, he picked two cases to proceed to a bellwether trial to determine the viability of claims asserted by more than 1,000 other municipal plaintiffs.
Central to this theory is the idea of “corresponding responsibility,” a term that explains how pharmacists share responsibility with prescribers to make sure improper narcotic prescriptions don’t slip through the closed system of drug distribution overseen by the Drug Enforcement Administration. In testimony earlier this week Carmen Catizone, a former chief executive of the National Association of Boards of Pharmacy who now works as a paid expert for plaintiff attorneys, told jurors that there were at least 16 red flags that pharmacists should investigate and document before filling any narcotic prescription.
As Catizone’s testimony proceeded, it was clear Lanier wanted to convince jurors the failure to document was as serious a violation as filling an improper scrip.
“If you don’t document it, how do you know it happened?” Catizone said at one point. Without documentation, he said, “opioids get outside the closed system.”
Lawyers for the defendants pointed out there are no written regulations requiring the level of documentation Catizone said is necessary, but Catizone and other witnesses maintained it is still a requirement under the Controlled Substances Act, the federal law governing narcotic drugs.
Joe Rannazzisi, a former DEA official turned $500-an-hour plaintiff expert, testified that pharmacists must call the prescribing physician each time they receive a scrip containing any of more than a dozen red flags, whether it is because the patient lives more than 20 miles from the pharmacy or because the doctor wrote for a combination of drugs some experts consider to be suspicious. More importantly for the plaintiffs’ case, he stressed the need for putting everything in writing.
“If you called the doctor there has to be some documentation,” he said, describing pharmacists’ notes as critical to public safety.
This theory plays to the strengths of the plaintiff case, which is millions of prescription records Judge Polster ordered the pharmacies to turn over to the others side. It also addresses the obvious weakness of a lack of evidence in the form of actual improper prescriptions that were filled.
Defense lawyers have argued their clients held less than 40% of the share of the opioid market in Lake and Trumbull counties and identified independent pharmacies, who Judge Polster refused to include in the trial, that were far more culpable for filling suspicious prescriptions. One of those stores, Franklin Pharmacy, dispensed five times as many pills as the busiest Walgreens pharmacy in Trumbull County, Walgreens attorney Kaspar Stoffelmayr of Bartlit Beck pointed out in opening arguments last week.
Another tactic plaintiff lawyers are utilizing is removing actual, identifiable human actors from the equation since jurors might identify with individual pharmacists and be unwilling to find them liable for causing a public nuisance. Just as the plaintiffs downplay the responsibility of doctors for writing improper prescriptions, blaming this on misleading marketing by drug companies, plaintiff lawyers have tried to convince jurors corporate executives pushed front-line pharmacists to fill prescriptions faster and skip the necessary checks for red flags.
Plaintiff lawyer Peter Weinberger attempted this switch to corporate responsibility with a retired Walgreens district pharmacy manager this week with mixed success. In hours of often contentious questioning, Weinberger tried to get Brian Joyce, who oversaw stores in Trumbull County, to agree that documentation of red flags was necessary “to ensure safe patient care.”
“It’s important when it’s important,” Joyce responded. “When Mrs. Jones came in with her narcotic prescription every month because she’s dying of cancer you wouldn’t document that on every successive prescription.”
Weinberger demanded to know where it said in Walgreens’ internal rules pharmacists were allowed to skip documentation.
“You have to use your judgment as a pharmacist, Mr. Weinberger,” Joyce responded.
Weinberger then asked why Joyce didn’t analyze the sort of data plaintiff lawyers assembled to try and show Walgreens stores were filling too many narcotic prescriptions, such as increasing sales of oxycodone. Joyce again said he relied on his judgment.
“I’ve been a pharmacist for 40 years. I can walk into a store and in 10 minutes tell if it’s a pill-mill pharmacy,” Joyce said. “We didn’t have those.”