CLEVELAND (Legal Newsline) - A federal jury has found three of the nation’s largest pharmacy chains liable for causing a "public nuisance" by filling too many opioid prescriptions in two Ohio counties, reviving a legal theory that is pushing thousands of cases nationwide but was recently rejected in two other closely watched cases.
The "public nuisance" in question is the opioid addiction crisis and Tuesday's verdict represents a victory for the state and local governments that have teamed with private lawyers who are seeking a chunk of verdicts and settlements.
The jury accepted arguments by private lawyers representing Lake and Trumbull counties that Walmart, Walgreens and CVS had failed to properly document how they resolved “red flags” indicating prescriptions might be improper - a legal theory defendants said misstated their duties under federal law. The judge overseeing the trial, U.S. District Judge Dan Aaron Polster, made numerous decisions on this and other legal questions before and during the trial that the defendants can be expected to appeal to the Sixth Circuit Court of Appeals.
Among other things, Judge Polster allowed the trial to continue after a juror violated the rules by conducting her own research and sharing it with the rest of the panel, and he rejected a second motion for mistrial after lead plaintiffs attorney Mark Lanier told jurors they had an “awesome, awesome opportunity” to set the standard for opioid litigation nationwide.
“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,” Walmart said in a statement. Plaintiff attorneys sued the company “in search of deep pockets” and their legal theories wrongly claimed pharmacists had a duty to second-guess doctors and interfere with patient relationships, the company said.
Judge Polster ordered the trial as a bellwether to determine liability of the pharmacies in thousands of similar cases gathered in his court for pretrial proceedings. He rejected arguments by the defendants that they were being singled out because of their deep pockets, while local pharmacies that law enforcement agencies have identified as filling improper prescriptions were not brought into court.
The case also hinged upon the judge’s interpretation of Ohio public nuisance law, while judges in Oklahoma and California have rejected the nuisance theory when interpreting similar statutes.
The jury was only assigned to find liability. Judge Polster gave himself the job of assessing damages he is calling “abatement” to comply with public nuisance law, which doesn’t provide for money damages. Instead, judges can order defendants to reverse or fix the problems they created.
In this case, the counties are seeking billions of dollars for drug-treatment programs to deal with the continuing problem of opioid addiction, mostly related to the use of illegal heroin and fentanyl.
The plaintiffs won this case without presenting evidence of a single improper prescription any of the defendant pharmacies had filled, and despite the fact they held relatively minor market share for opioid sales in the two counties. Before the trial began, Judge Polster urged the companies to settle, threatening the defendants other than Walmart with bankruptcy if they took the claims before a jury.
Defendants have had some success appealing Judge Polster’s earlier decisions to the Sixth Circuit. The court said would have violated the federal rules of civil procedure.