In a closely watched test case, a federal jury in Cleveland concluded on Tuesday (23) that the three largest US drugstore chains—CVS Health, Walmart, and Walgreens—have contributed significantly to the overdose and death crisis by opioids in two Ohio counties. It was the first time that the drug industry’s retail segment was held responsible for this decades-long epidemic.
The judge in the case will determine how much each company must pay the counties after hearings have yet to be scheduled. New federal data released last week show that deaths from overdose of illegal opioids, such as heroin and pirated fentanyl, reached record levels during the Covid-19 pandemic.
The verdict — the first by a jury in an opioid case — was encouraging to plaintiffs in thousands of lawsuits across the United States, who rely on the same legal strategy employed in this case, that drug companies contributed to “public unrest ” —a legal figure that, according to the authors, covers the public health crisis created by opioids.
“For decades, drugstore chains have seen the pills trickling through their doors do harm, and have not taken action as required by law,” said attorneys for the two counties, along with attorneys for local governments across the country, in a statement later. of the verdict.
“Today’s judgment against Walmart, Walgreens and CVS represents belated recognition of their complicity in creating public disturbances,” the statement said.
The public harassment argument was rejected twice earlier this month, by judges in California and Oklahoma, in cases against opioid manufacturers. The judges ruled that the companies’ activities were far removed from overdoses and deaths, and that enforcement of the public nuisance law had been pushed beyond plausible.
But in this case, brought by Lake and Trumbull counties in northeast Ohio, lawyers used legal theory successfully. They said pharmacies had for years turned a blind eye to numerous warning signs about suspicious opioid orders, both over the counter with patients and at corporate headquarters, whose oversight was “too little and too late,” according to Mark Lainer, lead county attorney. .
The 12-member jury deliberated for five and a half days after a six-week trial.
Wealthy retailers were the last nucleus of pharmaceutical corporations to be sued in court, and the most resistant to negotiating broad settlements. To date, they have faced fewer lawsuits than other drugmakers.
Last summer, Walgreens, Rite Aid, CVS Health and Walmart struck deals with two New York counties, Nassau and Suffolk, for $26 million in total. In the case of Ohio, Rite Aid and Giant Eagle, a regional network, made deals earlier, for undisclosed sums.
In comparison, several opioid manufacturers and distributors have pledged billions of dollars in deal offers, some national.
CVS and Walgreens immediately said they will appeal the verdict, and Walmart is expected to do the same. “Pharmacists comply with legal prescriptions written by physicians licensed by the Drug Enforcement Agency [DEA] that prescribe legal substances, approved by the Food and Drugs Agency [FDA] to treat real patients in need,” CVS said in a statement.
The statement continued: “We hope that the appeals court will review this case, including the application of the public disturbance law.”
The jury had to first decide whether the oversupply of prescription drugs and subsequent illegal diversion created a public nuisance in every county.
Under the law of public disturbance, a crisis must be continued. But in recent years, the number of prescriptions for opioids has declined, in large part because of increased oversight from state and federal programs, revised guidelines for physicians, and corporate compliance.
County lawyers have successfully argued that when supplies went down, patients who were addicts turned to heroin and the illegal use of fentanyl. This result was predictable, a direct consequence of the floods of prescription opioids, according to lawyers.
After the jurors concluded that there was “public unrest” related to the opioid crisis in the counties, they moved on to a second question. Did each pharmacy chain engage in conduct that was “intentional” or “illegal”, contributing substantially to the public disturbance of the opioid crisis?
In that case, according to the law, defendants must pay to “mitigate” the “disorder” they have exacerbated.
Like jury decisions in criminal cases, the verdict in this civil case had to be unanimous. But the jury only had to apply “the greatest weight of evidence” (at least 51%) as the standard of evidence, which is less than the level of “beyond reasonable doubt” needed to produce a guilty verdict in criminal trials.
Pharmacy lawyers responded with arguments that the appellate courts may still find plausible. The number of their stores represents a fraction of the pharmacies, hospitals and clinics that prescribe opioids in both counties, they said, and the number of pills they prescribed was measurably fewer. Law enforcement officials, who arrested the owner of an independent county pharmacy for dispensing worrying amounts of high-dose opioids, did not cite any of the county pharmacy chains.
There were too many reasons for the opioid explosion in both counties to blame the pharmacies so resoundingly, his lawyers argued. They named family medicine cabinets, the repository of so many unused pills, as centers of illegal entertainment; drug cartels; the manufacturers, who persuaded doctors and exaggerated the benefits of opioids, minimizing their risks; and doctors who, under pressure to treat pain more aggressively, increasingly ordered larger, more potent amounts.
“We all know that prescribers are controlling demand,” said Brian Swanson, an attorney at Walgreens. “Pharmacists don’t generate demand.”
Defendants’ attorneys repeatedly pointed the finger at federal authorities. Not only were the drugs approved by the FDA, they said, the DEA was also responsible for the huge amounts. Federal regulators set the annual limit on how many opioids can be produced in the country, which they continued to increase through 2021.
In his closing remarks, Lanier acknowledged that many factors contributed to this crisis. But pharmacies could not escape responsibility, he said, saying they only put relatively small amounts of opioids in the counties (and he rejected the defense’s calculation method).
Whether this verdict will survive the appeal remains to be seen. In addition to the many legal issues that arise from the case, defendants are expected to continue their criticism of Judge Dan Aaron Polster, who presided over the trial and has overseen the aggregation of thousands of opioid cases for years.
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