CLEVELAND (Legal Newsline) - Lawyers representing two Ohio counties that won $651 million in damages from pharmacies they accused of causing the opioid epidemic have asked the judge who handed down that verdict to order them to post a $174 million bond while they pursue their appeals.
Walmart, Walgreens and CVS have all asked the Sixth Circuit Court of Appeals to reverse the award by U.S. District Judge Dan Aaron Polster, who last month ordered the three pharmacy chains to pay hundreds of millions of dollars over 15 years in what he called “abatement” to reverse the effects of opioid addiction in Lake and Trumbull counties. The pharmacy defendants had proposed posting no more than $94 million during the appeals process, which could take two years or more.
In response, private lawyers including Simmons Hanly, Motley Rice and the Lanier Law Firm said a larger bond was necessary to secure payments Judge Polster ordered the defendants to begin making in October. They said they weren’t asking for a bond equal to the entire $650.6 million verdict but it is “likely the appellate process in this case will take three years or longer to conclude.” The defendants have said they will appeal to the U.S. Supreme Court if they lose at the Sixth Circuit.
“The bond amount suggested by defendants is too low,” lawyers representing the counties said in a Sept. 9 filing. “It is reasonably likely that before the appellate process has concluded, several payments under the judgment will come due.”
The counties’ lawyers are working under contingency-fee agreements that could give them 10% or more of whatever they win or negotiate for their clients. They have a strong financial incentive to get their fees sooner rather than later, having laid out, in Judge Polster’s estimation, more than $100 million on opioid litigation so far. A larger bond would give the defendants a stronger incentive to settle the two cases, generating fee income for the private lawyers more quickly.
The Sixth Circuit has reversed Judge Polster on several rulings already, and the pharmacy defendants hope they can reverse the judge’s decision ordering them to pay cash damages to the counties. The defendants say financial damages aren’t available under Ohio public nuisance law, which only allows judges to order defendants to abate the nuisance they caused, such as removing pollution from a riverbed or dismantling a barrier on a public road.
In this case, they argue, a jury found the “nuisance” was an excess supply of prescription opioids in the two counties. The defendants proposed a one-year program of collecting unused prescription drugs in the community to reduce that supply, which Judge Polster rejected.
In a separate action at the Sixth Circuit, the appeals court ordered the plaintiffs executive committee, the private lawyers at the head of the federal opioid litigation, to respond to petitions made by hundreds of counties in Texas, Arkansas, Pennsylvania and other states seeking to reverse Judge Polster’s order awarding them “common benefit” fees out of any settlements they negotiate. The dissenting counties say Judge Polster has no jurisdiction over their cases in state courts and therefore no power to order them to pay fees to lawyers on the PEC.