CLEVELAND (Legal Newsline) - A two-week bench trial to determine how much three national pharmacy chains must pay to solve a “public nuisance” of opioid abuse in two Ohio counties began with a fundamental dispute over what that nuisance is.
In opening marks Tuesday in his Cleveland courtroom, U.S. District Judge Dan Aaron Polster told lawyers for Walgreens, CVS and Walmart that they helped cause a nuisance he defined as “the addiction and dependence of a large number of people in in Lake and Trumbull counties resulting from the overdispensing and diversion of prescription opioids.”
That’s not what the jury decided in the first phase of the bellwether trial against the pharmacy chains, which Judge Polster oversaw last year. The jury verdict form actually says the public nuisance was “the oversupply of legal prescription opioids, and diversion of those opioids.”
Arguing for the pharmacies, attorney Katherine Hacker told Judge Polster that limiting the verdict to those words raises the question of how he can order the defendants to pay for an estimated $870 million plan of drug rehabilitation, mental health and job-retraining programs for an opioid crisis that even the plaintiff experts acknowledge is now largely caused by illegal fentanyl and heroin. Those experts pin the entire problem on pharmacists who filled improper prescriptions which served as a “gateway” to addiction and illegal drug use.
“Even under plaintiffs' gateway theory, there is a portion of harm that is neither directly nor even indirectly attributable to legal prescription opioids,” Hacker said.
Judge Polster seems disinclined to change his view of what the actual nuisance is or who should pay to fix it. While the defendant companies view the bill he is likely to submit to them as damages, Judge Polster defines it as “abatement,” likening the cost of reversing the effects of opioid addiction in the two counties to removing an illegal roadblock or remediating a stream polluted with chemicals.
He began his oversight of federal opioid multidistrict litigation in 2018 by declaring his goal was “to do something meaningful to abate this crisis and do it in 2018,” with “something meaningful meaning getting “some amount of money to the government agencies for treatment.” Now he has assigned himself the job of deciding how much money that will be in Lake and Trumbull counties, and by extension the rest of the country.
The opening arguments in his abatement trial displayed the wide gulf between how the plaintiffs and defendants view the meaning of the jury verdict in the liability phase of the trial last year. Plaintiff attorney Mark Lanier, resorting to his familiar tactic of using folksy analogies to explain complex legal questions, dismissed the idea of apportioning financial responsibility to the pharmacies based on their contribution to the opioid crisis. He likened the crisis to a cake, saying once it’s been baked, “it’s impossible to parse out the baking powder, it’s impossible to parse out the flour, the sugar.”
Attorneys for the pharmacies fought back, saying the judge could simply examine the actual patients receiving drug treatment in the two counties and see if they ever received prescription opioids from the three companies. Judge Polster pushed back, asking if there was any case law suggesting abatement should be apportioned among the many actors responsible for a nuisance.
“Because the remedy is supposed to abate the nuisance,” the judge said. “All right? That's what's supposed to happen. And you can't partially abate a nuisance. You either abate it or you don't.”
Attorney Eric Delinsky said the Restatement of Torts, among other sources, requires the court to apportion responsibility in public nuisance cases. He said the plaintiffs bore the burden of proving it couldn’t be calculated. Judge Polster, in an early ruling the defendants opposed, allowed plaintiffs to prove their cases based on “aggregate proof,” meaning they didn’t have to identify any specific prescriptions, or addicted people, to prove a public nuisance existed and had been caused by the pharmacies.
The judge’s decision has come back to haunt him in the penalty phase, as Judge Polster conceded. Assuming there are 5,000 people needing treatment in the two counties, he said, “there was absolutely no evidence in the trial as to who any of the 5,000 were, let alone how they came to be addicted, over what period of time, over what -- what prescriptions they got.”
“There was no evidence, and there will be no evidence,” the judge said.
Delinsky told the judge there could be evidence, in the form of prescription data held by Ohio regulators as well as the treatment records in the counties. Judge Polster sounded incredulous. Unless the plaintiffs can identify specific individuals in the counties “who became addicted or dependent after receiving prescriptions for legally dispensed opioids from CVS, I can't order any – any abatement against CVS for drug treatment? Is that your argument?”
It is the defendants’ argument. However, based on the judge’s comments so far, it is unlikely to carry the day.