CLEVELAND (Legal Newsline) - Walmart, Walgreens and CVS told a judge they should pay only a small fraction of the $2 billion or more that two Ohio counties are seeking for an “abatement” plan to address opioid abuse, saying they supplied less than 3% of the suspicious prescriptions plaintiff lawyers blame for the wider opioid crisis.
The drug chains initially rejected the idea of paying anything, but submitted revised plans after U.S. District Judge Dan Aaron Polster threatened them with contempt if they didn’t file plans to compare against plaintiff proposals.
A jury found the three companies liable for causing a public nuisance in November after a trial defendants said was marred by juror misconduct and numerous improper rulings by the judge. Judge Polster will decide how much the defendants pay after a hearing scheduled to begin in May.
In their revised filings, the companies repeated their argument they shouldn’t pay anything because the plaintiff counties failed to present evidence they filled a single improper or illegal prescription. If required, however, they said the only element of the plaintiff plan they should fund is prescription drug-collection programs in their stores, which they already provide.
The jury found only that the drug chains contributed to an oversupply of prescription opioids in the two counties, the companies argued, so they shouldn’t be forced to pay for drug treatment, syringe distribution, hepatitis screening and other programs aimed at users of illegal fentanyl and injection drugs they didn’t sell.
“These proposed programs are far too remote from defendants’ past dispensing conduct, and defendants should not be ordered to fund such programs under the guise of `abatement,’” the companies said.
If Judge Polster orders them to pay for the wider programs, they continued, the payments should be limited to residents of the two counties who don’t have insurance and filled prescriptions at their stores. The counties only expended their own funds on treatment for the uninsured, the defendants said.
Payments also should be limited to a year, they said, since Ohio’s own medical experts say that is the typical length of a drug-treatment program. The only judge so far to order an abatement program also limited it to a year, although the Oklahoma Supreme Court later overturned that verdict.
Defense experts Daniel Kessler and Matthew Bialecki estimated the total costs of a one-year abatement program for the two counties would be about $35 million and the defendants’ share would range from 0.1% to 2.8% based on the proportion of “red-flagged” opioid prescriptions they filled.
Plaintiff lawyers and their experts argued that unwritten federal rules require pharmacists to identify and resolve all of a lengthy list of “red flags,” ranging from cash payments to prescribing doctors located in other towns, before filling any opioid prescriptions. According to some plaintiff expert estimates, red-flagged prescriptions represented more than 80% of the scrips filled in the two counties.
Finally, the defendants said any abatement plan should be run by a neutral administrator who vets all applications for program funds to make sure they are appropriate. County officials should have no access to the funds, the companies said.