Three major retailers helped flood two Ohio counties with addictive opioids, a federal jury said Tuesday in a first-of-its-kind verdict that could serve as a possible indicator for thousands of cities and counties that blame the companies for part of the nation’s opioid crisis.
U.S. District Judge Dan A. Polster in Cleveland is expected in April or May to decide how much the companies will pay the two counties, according to the counties’ attorneys, who estimate the toll of the epidemic to cost more than $1 billion for each of the counties. Other pharmacies, Rite Aid and Giant Eagle, previously settled with the counties for undisclosed sums.
“For decades, pharmacy chains have watched as the pills flowing out of their doors cause harm and failed to take action as required by law,” the counties’ legal team said in a statement. “Instead, these companies responded by opening up more locations, flooding communities with pills, and facilitating the flow of opioids into an illegal, secondary market. The judgment today against Walmart, Walgreens and CVS represents the overdue reckoning for their complicity in creating a public nuisance.”
The counties in a blue-collar, manufacturing-heavy region have argued that the companies created a public nuisance — a key legal argument that has faced recent pushback from two other courts in Oklahoma and California.
The judges ruled that the strategy in other cases against drug companies and pharmacies had stretched the law, which covers a mix of offenses against the community at large, such as disturbing a neighborhood with loud music or a foul stench.
Trials over similar claims are ongoing in state courts in New York and Washington. A ruling is expected soon in a trial before a federal judge in West Virginia.
In response to Tuesday’s verdict, Walgreens said that “significant legal errors” were committed by allowing the jury trial to proceed.
“The plaintiffs’ attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law is misguided and unsustainable,” spokesman Fraser Engerman wrote in a statement. “We look forward to the opportunity to address these issues on appeal before the U.S. Court of Appeals for the Sixth Circuit.”
Walmart’s representative said the company would appeal the verdict, citing an instance during the trial when a jury member brought in a flier about naloxone and was dismissed.
“But the simple facts are that opioid prescriptions are written by doctors, not pharmacists; opioid medications are made and marketed by manufacturers, not pharmacists; and our health care system depends on pharmacists to fill legitimate prescriptions that doctors deem necessary for their patients,” CVS spokesman Mike DeAngelis wrote in a statement.
The pharmacy chains have blamed drugmakers for marketing the addictive medications, and doctors for overprescribing, arguing that others were significantly responsible for the flood of legal opioids that were diverted to illegal use. But federal law puts a “corresponding responsibility” on the pharmacist to determine that a prescription he or she fills is for a legitimate medical purpose.
In countless cases over the past 20 years, especially during the pill mill and Internet pharmacy era of the early 2000s, some druggists ignored that law by selling opioids, despite red flags that the drugs were being diverted to the black market.
After a Drug Enforcement Administration investigation, Walgreens agreed in 2013 to pay $80 million — a record settlement for the agency at the time — to resolve allegations about dispensing and distribution violations. At the height of the opioid epidemic, Walgreens dominated the nation’s retail opioid market, buying so many pain pills that some stores had to hire security or call the police.
CVS ultimately paid a $22 million penalty to the federal government, acknowledging that some of its retail stores “dispensed certain controlled substances in a manner not fully consistent with their compliance obligations,” according to a Justice Department news release issued in 2015.
In a span of eight years, 10 pharmacies dispensed nearly 49 million prescription pain pills to the two Ohio counties — enough to provide about a dozen doses to each man, woman and child who lived there every 12 months.
The counties blamed the deluge of hundreds of millions of pills sent to their area over two decades for fueling addiction to opioids that led people to harder drugs, such as heroin and fentanyl, a synthetic opioid leading the nation’s overdose epidemic.
Nationwide, more than 100,000 people have died of drug overdoses in a 12-month period, a record reached ahead of the Ohio trial.
In Lake and Trumbull counties, the number of overdoses is on track to surpass previous highs, county officials testified.
“We’ve been watching it mount, watching it grow,” testified April Caraway, the executive director of the Trumbull County Mental Health and Recovery Board. “Our worst year was 2017, but this year’s probably going to be worse than then.”
The counties have said funds from a judgment would be spent to abate the crisis, helping relieve social services stretched to their limits to meet the demands of people overdosing and dying.
“It was like we were hit with a tsunami,” Caraway added, “and we were just pulling the bodies out of the water.”
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