Jury holds pharmacies responsible for role in opioid crisis

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CLEVELAND (AP) — Three retail pharmacy chains recklessly distributed massive amounts of pain pills in two Ohio counties, a federal jury said Tuesday in a verdict that could set the tone for U.S. city and county governments that want to hold pharmacies accountable for their roles in the opioid crisis.

The counties blamed pharmacies operated by CVS, Walgreens and Walmart for not stopping the flood of pills that caused hundreds of overdose deaths and cost each of the two counties about $1 billion, their attorney said.

This was the first time pharmacy companies had completed a trial to defend themselves in a drug crisis that has killed a half-million Americans over the past two decades.

Lake and Trumbull counties were able to convince the jury that the pharmacies played an outsized role in creating a public nuisance in the way they dispensed pain medication into their communities.

Attorneys for the three pharmacy chains maintained they had policies to stem the flow of pills when their pharmacists had any concerns and would notify authorities about suspicious orders from doctors.

They also said it was the doctors who controlled how many pills were being prescribed for legitimate medical needs.

In a statement, Walgreens said:

“We are disappointed with the outcome of this trial. The facts and the law do not support the verdict. We believe the trial 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. As we have 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. The plaintiffs’ attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law is misguided and unsustainable. We look forward to the opportunity to address these issues on appeal before the United States Court of Appeals for the Sixth Circuit.”

In another statement, Walmart said:

“We will appeal this flawed verdict, which is a reflection of a trial that was engineered to favor the plaintiffs’ attorneys and was riddled with remarkable legal and factual mistakes.

“Among the many problems during this trial, the judge allowed it to continue after a juror violated court rules by conducting her own research and sharing it with other jurors. The judge even said that in his 22 years on the bench he had never seen a juror do “anything like” this, and we agree with the plaintiffs’ own lawyer, when he said it was his “ethical obligation” to call for a mistrial because of this juror misconduct. Additionally, this verdict is out of step with courts around the country that have rejected plaintiffs’ novel “public nuisance” liability theories in opioid lawsuits in Connecticut, Delaware, Illinois, California, Oklahoma, North Dakota, and South Dakota, to name a few.

“Plaintiffs’ attorneys sued Walmart in search of deep pockets while ignoring the real causes of the opioid crisis—such as pill mill doctors, illegal drugs, and regulators asleep at the switch—and they wrongly claimed pharmacists must second-guess doctors in a way the law never intended and many federal and state health regulators say interferes with the doctor-patient relationship. As a pharmacy industry leader in the fight against the opioid crisis, Walmart is proud of our pharmacists, who are dedicated to helping patients in the face of a tangled web of conflicting federal and state opioid guidelines.”

CVS released the following statement:

We strongly disagree with the decision. Pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat actual patients in need. 

We’re proud of the substantial work we’ve done to support our pharmacists in detecting illegitimate prescribing. 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. We look forward to the appeals court review of this case, including the misapplication of public nuisance law.

“As plaintiffs’ own experts testified, many factors have contributed to the opioid abuse issue, and solving this problem will require involvement from all stakeholders in our health care system and all members of our community.”

Two other chains — Rite Aid and Giant Eagle — already have settled lawsuits with the two Ohio counties.

Attorney Mark Lanier, who represented the counties in the lawsuit, said during the trial that the pharmacies were attempting to blame everyone but themselves.

The opioid crisis has overwhelmed courts, social services agencies and law enforcement in Ohio’s blue-collar corner east of Cleveland, leaving behind heartbroken families and babies born to addicted mothers, Lanier told jurors.

Roughly 80 million prescription painkillers were dispensed in Trumbull County alone between 2012 and 2016 — equivalent to 400 for every resident.

In Lake County, some 61 million pills were distributed during that period.

The rise in physicians prescribing pain medications such as oxycodone and hydrocodone came at a time when medical groups began recognizing that patients have the right to be treated for pain, Kaspar Stoffelmayr, an attorney for Walgreens, said at the opening of the trial.

The problem, he said, was that “pharmaceutical manufacturers tricked doctors into writing way too many pills.”

The counties said pharmacies should be the last line of defense to prevent the pills from getting into the wrong hands.

They didn’t hire enough pharmacists and technicians or train them to stop that from happening and failed to implement systems that could flag suspicious orders, Lanier said.

The trial before U.S. District Judge Dan Polster in Cleveland was part of a broader constellation of federal opioid lawsuits — about 3,000 in all — that have been consolidated under the judge’s supervision. Other cases are moving ahead in state courts.

It was one of five trials so far this year in the U.S. to test claims brought by governments against parts of the drug industry over the toll of prescription painkillers.

Trials against drugmakers in New York and distribution companies in Washington state are underway now. A trial of claims against distribution companies in West Virginia has wrapped up, but the judge has not yet given a verdict.

Earlier in November, a California judge ruled in favor of top drug manufacturers in a lawsuit with three counties and the city of Oakland. The judge said the governments hadn’t proven that the pharmaceutical companies used deceptive marketing to increase unnecessary opioid prescriptions and create a public nuisance.

Also in November, Oklahoma’s supreme court overturned a 2019 judgment for $465 million in a suit brought by the state against drugmaker Johnson & Johnson.

Other lawsuits have resulted in big settlements or proposed settlements before trials were completed.

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