COLUMBUS, Ohio (Legal Newsline) - The federal Sixth Circuit Court of Appeals has asked the Ohio Supreme Court to answer the central question behind a $650 million federal court judgment against Walgreens, CVS and Walmart over opioid claims: Does Ohio law allow “public nuisance” lawsuits based on the sale of legal products?
State legislators amended the Ohio Product Liability Act in 2007 cover “claims against a manufacturer or supplier for a public nuisance allegedly caused by a manufacturer’s or supplier’s product.”
Despite this seemingly clear language, U.S. District Judge Dan Aaron Polster ruled the law only covers lawsuits seeking compensatory damages. Judge Polster, who is overseeing thousands of opioid lawsuits consolidated in federal court, then concluded he could use his injunctive powers to order the drug chains to pay $650 million in “abatement” for harms caused by filling too many opioid prescriptions.
The drug chains appealed Judge Polster’s rulings to the Sixth Circuit and in a Sept. 11 order, the appeals court asked the Ohio Supreme Court to clarify the law.
Trumbull and Lake Counties claimed the drug stores created a public nuisance by failing to take enough safeguards to prevent legal opioids from getting into the wrong hands. The defendants say the cases fall under OPLA because they focus on how legal products were marketed.
A magistrate judge in 2018 recommended that the public nuisance claims be dismissed under OPLA. But Judge Polster disagreed, finding the definition of “product liability claim” was ambiguous and that the legislature didn’t intend to eliminate public-nuisance claims that sought “abatement” instead of compensatory money damages. Judge Polster announced soon after he was put in charge of federal multidistrict opioid litigation that he wanted to “do something” about the opioid crisis and he though trials would be unnecessary.
After a jury found the defendants liable for causing a nuisance, Judge Polster ordered them to pay $650 million over a number of years for various drug treatment programs.
Under U.S. Supreme Court precedent, federal courts must guess at how state courts would enforce state law. “If, however, that issue is novel or unsettled, a federal court has the discretion to request that a state’s highest court provide the definitive state-law answer through certification,” the Sixth Circuit said.
The only prior Ohio Supreme Court decisions involving OPLA, including one allowing litigation to proceed against gunmaker Beretta, came before the legislature amended the law to cover “any public nuisance claim.”
The Sixth Circuit may have given a hint as to how it sees the case by citing the exact language of the statute in the defense’s argument: “Defendants argue the OPLA, through operation of those amendments, `abrogates all common-law public nuisance claims involving the sale of products, regardless of the remedy sought.’” The plaintiffs, on the other hand, argue “any public nuisance claim” doesn’t mean all public nuisances claims or only lawsuits seeking compensatory damages.
The appeals court asked the Ohio Supreme Court to answer the question: Does OPLA abrogate “a common law claim of absolute public nuisance resulting from the sale of a product in commerce” where plaintiffs seek either monetary or injunctive remedies?
Most government plaintiffs are represented by private lawyers who have already negotiated more than $26 billion in opioid settlements including $5 billion in fees. Courts that have actually considered the public-nuisance question have delivered conflicting results, however. The Oklahoma Supreme Court threw out a $465 million opioid nuisance verdict in 2022, saying the trial judge misinterpreted state law. Courts in North Dakota and Connecticut also have dismissed opioid public nuisance lawsuits.