Public nuisance laws in opioid cases give hope to both sides

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Pharmacists have lost out on an unprecedented trial in Ohio over opioid toll, but there’s no assurance the results will stay on appeal

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CLEVELAND — A jury’s finding this week that three major pharmacy chains are responsible for contributing to the opioid addiction crisis in two Ohio counties could be the start of a protracted legal battle that may ultimately leave communities no better.

The reason for this is the central argument – that pharmacies created a “public nuisance” by distributing massive amounts of prescription painkillers in each county.

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Thousands of state and local governments have sued drug manufacturers, distributors and pharmacies for a crisis that has contributed to more than 500,000 overdose deaths in the US over the past two decades. The lawsuits typically centered on claims that the companies created a public nuisance by interfering with the rights of the public by the way they marketed, shipping and selling drugs – feeding some patients’ addictions and later on the black market of pills. To give.

Similar arguments were used in two other cases — in California and Oklahoma — that went in favor of the industry in the weeks before an Ohio jury’s decision. Given those decisions, there is no guarantee that Tuesday’s ruling in the case brought by Lake and Trumbull County against CVS, Walgreens and Walmart will stand on appeal or lead to a similar decision elsewhere.

“There have been so many different decisions recently that should give us reason to be cautious about what this really means in the grand scheme,” said Kevin Roy, chief public policy officer at Shatterproof. ,

The industry argues that it did nothing illegal and that public nuisance laws do not apply only to prescribing and distributing prescription painkillers.

“As we’ve said throughout this process, we never manufactured or marketed opioids, nor did we distribute them to the ‘pill mills’ and Internet pharmacies that fueled this crisis,” Walgreens spokesman Fraser Engerman said. said in a statement. “Plaintiffs’ attempt to address the opioid crisis with the unprecedented expansion of public nuisance legislation is misguided and not sustainable.”

Public nuisance claims are commonly used to address local concerns such as damaged homes, illegal drug-dealing or dangerous animals. Such claims were used in lawsuits brought against tobacco companies in the 1990s, but they were settled rather than tested.

Lawyers representing counties and other local governments involved in the wider universe of opioid lawsuits said the companies were able to create local public health emergencies by opening up more locations, filling communities with pills and facilitating the flow of opioids into a secondary market. are confused.

In Trumbull County alone, approximately 80 million prescription painkillers were distributed between 2012 and 2016 – the equivalent of 400 for each resident. In Lake County, it was about 61 million pills.

The Rev. Barbara Holzhauser has seen a flood of opioids tearing the seams of her community. She ends up receiving a lot of calls telling him about an overdose death and has attended many of those funerals.

“In almost every situation, like my nephew, the person has tried to recover and fell back into it,” said Holzhauser, whose nephew died of an overdose eight years earlier.

An assistant minister at Mentor United Methodist Church, he said the crisis has been devastating in Lake County, a mix of blue-collar and affluent suburban neighborhoods east of Cleveland. Holzhauser said he was glad the county was doing something to hold the pharmaceutical industry accountable.

“I can’t think of anyone I know who hasn’t been affected by this in any way,” she said.

Lawyers representing local governments in the national opioid litigation cited effects similar to those on Lake County in defending the use of public nuisance methods, claiming that the companies were negligent or negligent. Attorney Mark Lanier said pharmacies should have taken more responsibility in distributing opioids.

“These are drugs that are highly addictive,” Lanier said. “And through this trial, the jury was able to assess the national measures that have been put in place by these pharmaceutical chains and shouted from the rooftops: ‘Inadequate.'”

Yet pharmacy chains have vowed to continue the fight and see cause for optimism.

An Oklahoma judge ruled in 2019 that drugmaker Johnson & Johnson committed a fiasco and ordered the company to pay $465 million to the state. This month, the state Supreme Court overruled the decision, saying Oklahoma’s public nuisance law does not apply to the opioid manufacturer.

Also this month, a California judge ruled in favor of a group of drug makers who are being prosecuted by county and city governments under public nuisance statutes.

Tuesday’s decision bucked that trend. The Ohio case is also unique in that it was the first of the US opioid trials to be decided by a jury rather than a court, and the first on claims against pharmacies.

University of Georgia law professor Elizabeth Burch said pursuing cases on the basis of public nuisance makes sense because pharmacies were uniquely positioned to evoke the addiction crisis.

“These are the people who are on the front lines,” she said. “They’re seeing the same people who are coming in and they’re seeing the same doctors who are prescribing.”

But she also noted that public nuisance statute and case law vary by state and that factors such as a compelling attorney can be enough to swing a verdict. This makes it uncertain whether a consensus will develop around the legal principle.

More trials of public nuisance laws are on the horizon.

A federal judge in West Virginia heard a case against drug distributors earlier this year but has not yet ruled. Trials are underway against distributors in Washington state and manufacturers in New York.

Unlike companies in other sectors of the pharmaceutical industry, no pharmacy has reached a nationwide agreement on the crisis. Joe Rice, one of the leading attorneys representing local governments in the cases, said he hopes the ruling will prompt pharmacy chains to reach those settlements.

If they don’t, it could cost them even more. Two Ohio counties, for example, are seeking more than $1 billion in damages in the second phase of testing next April or May.

“We’re going to try a lot of cases and we’re going to lose some,” Rice said. “But we’re going to win this war.”

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Mulvihill reported from Cherry Hill, New Jersey.

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