Ohio jury finds pharmacy chains fueled opioid crisis

A federal jury in Ohio on Tuesday found pharmacy chains CVS, Walgreens and Walmart liable for fueling the opioid crisis, signaling a shift in the national opioid litigation that saw two defense verdicts this month.

As of Nov. 9, plaintiffs were 0-for-2 in opioid lawsuits. Orange County Judge Peter Wilson and the Oklahoma Supreme Court, in separate cases, rejected states' arguments that companies violated public nuisance laws by downplaying the risks of prescription opioid addiction.

However, in the first trial verdict to be reached among 3,000 lawsuits consolidated into a multidistrict litigation in the Northern District of Ohio, two Ohio counties prevailed. South Carolina attorney Joseph F. Rice of Motley Rice LLP, along with members of a Plaintiffs' Executive Committee, in a statement called the verdict an "overdue reckoning" for pharmacies complicit in creating a public nuisance.

"Today's verdict represents a milestone victory for the Lake County and Trumbull County communities, and the entire country, in the fight against the opioid epidemic," the committee said in a statement. "We also hope that this positive outcome is one of many to come in the federal opioid litigation as more towns, cities, and counties get their day in court to hold opioid manufacturers, distributors, and pharmacies accountable."

Walmart, represented by Ohio attorney John M. Majoras of Jones Day, in a scathing statement, vowed to appeal what it called a "flawed" verdict, saying it was a reflection of a trial that was engineered to favor the plaintiffs' attorneys and was riddled with "remarkable legal and factual mistakes."

Among its complaints about the trial, Walmart said U.S. District Judge Dan A. Polster allowed it to continue after a juror violated court rules by conducting her own research and sharing it with other jurors, the statement read. Polster rejected Walmart's motion for a mistrial Tuesday.

"The judge even said that in his 22 years on the bench he had never seen a juror do 'anything like' this, and we agree with the plaintiffs' own lawyer, when he said it was his 'ethical obligation' to call for a mistrial because of this juror misconduct," it said.

It went on to say the verdict is out of step with courts around the nation that have rejected "plaintiffs' novel 'public nuisance'" liability theories in opioid lawsuits in several other states. The real cause of the opioid crisis, it said, are pill mill doctors, illegal drugs, and "regulators asleep at the switch."

"Plaintiffs' attorneys sued Walmart in search of deep pockets ... They wrongly claimed pharmacists must second-guess doctors in a way the law never intended and many federal and state health regulators say interferes with the doctor-patient relationship," the statement continued.

Walmart seemed to embrace a similar argument drug manufacturers in California made during the Orange County trial -- that prescription opioids are legal and approved by the Food and Drug Administration, thus companies shouldn't be held accountable for the crisis.

What is significant about Tuesday's ruling, plaintiffs' attorney Roman Silberfeld of Robins Kaplan LLP said, is that the pharmacy defendants in Ohio, should have had an easier defense to make compared to distributors and manufacturers that actually produce and market opioids.

"One of the things the judge in Orange County embraced in his decision ... is the theme from the manufacturer's defense that said, 'These are legal drugs, the fact that they may be misused by people in the street doesn't create a nexus to our legally selling it," Silberfeld said. "Well guess what? A pharmacy doesn't do anything other than fill a prescription written by a doctor, so they have that same argument in spades, and it didn't work. So I think this verdict is really quite important and quite telling."

Harry Nelson of Nelson Hardiman LLP, a health care and life sciences specialty law firm in Los Angeles, said plaintiffs in opioid litigation are out of luck when it comes to judges, rather than juries.

"Notwithstanding California law's potentially broader allowance for public nuisance claims, Judge Wilson ruled on the basis of a missing causal connection between the conduct and the harm that the jury overlooked in Ohio," Nelson said in an email. "Ironically, it should have been easier to show misconduct by the drug companies in the Orange County case based on their affirmative marketing than the pharmacies in Ohio, which were only accused of the omission of insufficient screening of prescriptions."

The jury verdict concludes the liability phase of the Ohio trial. Damages will be determined in phase two. In re: National Prescription Opiate Litigation, 17-md-02804. (N.D. Ohio, filed July 7, 2021).