IS THE NATIONAL OPIOID CRISIS A PUBLIC NUISANCE?

Author: Madison Dorris, Senior Editor

Overview

On January 9, 2024, Walmart, CVS, and Walgreens urged the Ohio Supreme Court to toss out a $650M jury verdict awarded to Lake County and Trumbull County in 2021.[i] The counties alleged that the named pharmacies contributed to the opioid epidemic by failing to implement safeguards on dispensing procedures in order to prevent opioids from entering the black market.[ii] The Ohio Supreme Court is opining whether the opioid epidemic can be considered a public nuisance to provide a basis for awarding equitable relief – the legal theory underlying many other similar suits brought by local governments across the country.[iii]

Background

Over the course of many decades, distribution of pain medications has resulted in numerous suits against pharmacy companies and drug manufacturers due to the devastating impact left on communities.[iv] The opioid crisis has flooded court dockets, engrossed social-service agencies, and diverted law enforcement efforts to reduce the number of opioid-related overdoses.[v]

Between 2012 and 2016, approximately 80 million prescription painkillers were dispensed in Trumbull County, which is the equivalent of 400 per resident.[vi] In Lake County, nearly 61 million painkillers were dispensed during the same period.[vii] The counties soon filed suits against Walmart, CVS, and Walgreens, which were part of a flood of nearly 3,000 federal opioid lawsuits that eventually consolidated.[viii] Strikingly, the 2021 litigation resulting from these suits marked the first time pharmacy companies went to court over a drug crisis matter to defend themselves since 1999.[ix]

In the consolidated 2021 trial, the counties alleged that the pharmacies created an “absolute public nuisance,” which requires either (1) intentional conduct or (2) an abnormally dangerous condition that cannot be maintained without injury to property (no matter what degree of care is taken).[x] After a six-week trial, the jury concluded that Walmart, CVS, and Walgreens had created a public nuisance and owed $650M in total to Lake County and Trumbull County.[xi] Lake County was ordered to receive $306M over a 15-year period, and Trumbull County was ordered to receive $344M.[xii] The jury also concluded that the Ohio Product Liability Act (OPLA) did not bar the public nuisance claim because it did not arise from a defective aspect of prescription opioids.[xiii] Instead, the claim arose from an oversupply of safe, non-defective drugs which were ultimately diverted into the black market and in turn led to opioid misuse.[xiv]

Pharmacies’ Arguments

Walmart, CVS, and Walgreens argue that OPLA bars the counties’ common law public nuisance claim based on the distribution and marketing of the product.[xv] Walgreens spokesperson, Fraser Engerman, stated, “[The court] committed significant legal errors in allowing the case to go before a jury on a flawed legal theory that is inconsistent with Ohio law and compounded those errors in reaching its ruling regarding damages.”[xvi] The pharmacies claim that the OPLA did not originally address public nuisance claims, but that lawmakers amended the act to bar the claims after public nuisance suits were repeatedly filed. [xvii] Additionally, the pharmacies argue that the scope of the award exceeded the breadth of the nuisance found and that the trial was tainted by a juror who disseminated information to fellow jurors regarding the availability of Naloxone.[xviii]

In summary, the pharmacies argue that the amendments barred all public nuisance claims under the Act's provision abrogating certain product liability claims, regardless of the remedy sought.[xix] Alternatively, the counties allege that public nuisance claims seeking an equitable remedy are still permitted under the OPLA despite the revisions.[xx]

The Court’s Considerations When Making Determinations

In September of 2023, the Sixth Circuit requested that the Ohio Supreme Court determine whether the opioid crisis in Ohio could be considered a public nuisance and whether the OPLA bars public nuisance lawsuits. [xxi] Since the OPLA has not been reinterpreted since being amended in 2005 and 2007, however, there is no controlling precedent to guide the Ohio Supreme Court in its determination.[xxii] Therefore, the Ohio Supreme Court must now determine if, as argued by Walmart, CVS, and Walgreens, the OPLA abrogates absolute public nuisance claims seeking equitable remedies. The Court’s decision will not only permanently alter the standard of care pharmacies are expected to abide when dispersing pain killers, but will also reveal the consequences these companies can face when communities are destroyed by their errors.

[i] Emily Field, Ohio High Court Urged To Toss $650M Opioid Verdict, Law360 (January 9, 2024), https://www.law360.com/productliability/articles/1784016/ohio-high-court-urged-to-toss-650m-opioid-verdict?copied=1.

[ii] Id.

[iii] Id.

[iv] Mark Gillespie, Judge: Pharmacies owe 2 Ohio counties $650M in opioids suit, Associated Press (August 17, 2022), https://ktla.com/news/nationworld/ohio-counties-awarded-650m-in-cvs-walmart-walgreens-suit/.

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Id.

[x] In re Nat'l Prescription Opiate Litig., 82 F.4th 455, 458  (6th Cir. 2023).

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id. at 461.

[xv] Field, supra note i.

[xvi] Gillespie, supra note iv.

[xvii] Field, supra note i.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Id.