The counties in a blue-collar, manufacturing region of Ohio claim CVS, Walgreens, Giant Eagle and Walmart failed to stop mass quantities of opioid drugs from reaching the black market, fueling hundreds of overdose deaths amid one of the worst public health crises in the nation’s history.
The long-awaited federal trial before U.S. District Judge Dan Polster is the first against the pharmacies since scores of cities, counties, Native American tribes and other plaintiffs have sued the companies in a complex, sprawling multidistrict litigation. The defendants have denied wrongdoing, saying they were merely carrying out authorized prescriptions.
“It’s important for these two communities to have an opportunity to tell their story, to let the jury and the public know the role that the pharmacies have as it relates to this epidemic,” said Frank L. Gallucci, a lead attorney for the Ohio counties. “Their involvement is necessary for the abatement of it, not just in these two communities but across the country as a whole.”
The setting of the trial is especially grim: Overdose deaths in 2021 are set to eclipse the toll tallied when the case was filed about three years ago, Gallucci said. Nationwide, overdose deaths involving opioids reached 69,710 in 2020, a share of the more than 500,000 opioid overdose deaths since 1999. While prescription dispensing has tapered with stricter enforcement, heroin and synthetic fentanyl have contributed to an increasing number of deaths.
What was supposed to be the first federal trial nearly took place in 2019 but was upended by an eleventh-hour, $260 million settlement between two other Ohio counties, Cuyahoga and Summit, and mammoth opioid distributors McKesson, AmerisourceBergen and Cardinal Health, and drugmaker Teva Pharmaceuticals. Since then, the coronavirus pandemic has stalled court proceedings.
Gallucci did not rule out the possibility of a last-minute settlement but said his legal team was ready to face the companies’ lawyers in court Monday.
“I think Lake and Trumbull counties are no different than all the communities across the country: They would love to have these defendants come forward and take responsibility and help be part of the solution,” he said. “That being said, we are prepared for trial, we’re giving our openings on Monday and we plan on seeing this through the seven weeks it will take.”
Between 2006 and 2014, more than 190 million pills were shipped to Lake and Trumbull counties, a deluge not unfamiliar in much of the country, especially rural communities, where unemployment, an economic downturn and a steady, easy supply of opioids combined to send drug abuse rates climbing. The counties contend the amount of pills supplied was more than could have possibly been medically necessary.
Federal law requires manufacturers, drug retailers and suppliers to report suspicious orders to the Drug Enforcement Administration. But despite warnings from the DEA, pharmacy chains continued dispensing pills, even in some cases implementing performance metrics and prescription quotas for retail stores, Lake and Trumbull counties say.
When the federal agency ramped up actions against distributors, lobbyists — including the National Association of Chain Drug Stores — pushed for a law that removed one of the DEA’s enforcement mechanisms.
The impact of the addiction crisis has been stark: People were left jobless and homeless; social services were stretched; and coroners in at least four nearby counties — Cuyahoga, Ashtabula, Summit, and Stark — reported having to request refrigerated trailers to store bodies in amid an uptick in overdose deaths, plaintiffs say.
“It’s visually changed,” said 55-year-old Janelle Lanning Unger, who has lived in Lake County most of her adult life. “It’s not like those who are struggling are in hiding. You see them homeless, walking around in the streets. It’s getting to the point garages are getting robbed and cars are getting broken into. It’s not discreet.”
For 15 years, Lanning Unger has advocated for people who use drugs, since she learned her adult son had become addicted to opioids. She has fundraised and volunteered for recovery programs in her area. Now, she wants a chance to listen to pharmacies explain in court why they sent so many pills to her community.
“As an advocate and as a mom, I don’t understand how you can morally fill … 17 prescriptions for one person,” she said. “I just don’t understand, and I think we should get answers.”
One pharmacy, Rite-Aid, was severed from the case after it came to an agreement with the counties in August. Giant Eagle, a Pittsburgh-based, family-owned regional supermarket chain, said the DEA never issued an order to show cause against its stores. Walmart’s legal team claims its dispensing “accounted for a tiny share” of the market in both counties.
CVS and Walgreens similarly argue that they did not break the law.
“When it comes to controlled substances, pharmacists take the appropriate steps under the circumstances of each prescription to guard against filling illegitimate prescriptions, while still working to make sure that patients suffering in real pain are able to obtain the medications their doctors have prescribed,” Walgreens attorneys wrote.
Although the first of its kind, the trial will be the fourth this year to test governments’ claims that different companies played a role in the overdose epidemic.
Trials in a state court in California and federal court in West Virginia have wrapped up, while the trial by jury in New York State Court is ongoing.
Settlements have scaled back the flurry of cases, with the nation’s three biggest opioid distributors, AmerisourceBergen, Cardinal Health and McKesson, and manufacturer Johnson & Johnson, reaching a $26 billion nationwide settlement earlier this year. Last month, a federal bankruptcy judge approved a settlement for OxyContin-maker Purdue Pharma that would convert the company to a public benefit firm.
The Ohio trial is expected to last seven weeks, with each side allotted 75 hours to present. Should the counties win in court, they plan to use any money from a judgment to abate the crisis, like other communities in Ohio.
Gallucci said that even though the trial focuses on what transpired between 2006 to 2014, the wave of opioid abuse still afflicts both counties.
“The harms are still being suffered,” he said. “And the deaths are still occurring.”