“Landmark Decision” in Ohio Finds CVS, Walgreens & Walmart Liable in Opioid Epidemic

Written by: J. Brent Allen, Esq.

A federal jury in Cleveland recently found that the actions by pharmacy operators helped fuel the opioid epidemic in Ohio, which a county attorney called a “landmark decision” in the first trial the companies have faced over the drug crisis in America.

After deliberating for six days, the jury found that CVS Health Corp., Walgreens Boots Alliance Inc. and Walmart Inc. helped create a public nuisance by selling and dispensing massive quantities of addictive opioid painkillers in two counties in Ohio.

While the drugs were prescribed by licensed doctors and purchased through normal protocols at the pharmacies, many of the drugs were later sold and resold on the black market.

The verdict opens the door for Lake County and Trumbull County in Ohio to each seek more than $1 billion from the companies to help address overdoses, deaths and other health problems in their communities caused by opioid drugs.

The opioid crisis has caused nearly 500,000 overdose deaths in the past two decades in the United States, according to data compiled by the U.S. Centers for Disease Control and Prevention, and deaths from synthetic opioids such as fentanyl have risen sharply in recent years. Drug overdose deaths topped 100,000 annually as of mid-November, an increase of almost 30% from the same period in the previous year, government data show.

U.S. District Judge Dan Polster is expected to hold a trial in the spring to determine how much the companies will pay.

An attorney for the counties, Mark Lanier, said the verdict is a “landmark decision” that paves the way for other state and local governments to seek and negotiate settlements to resolve thousands of other cases pending against pharmacy companies.

“You can be sure the message from this jury is going to be talked about in the boardrooms of every corporation involved in the pharmaceutical chain that’s involved in this litigation,” Joe Rice, a lead lawyer for the plaintiffs, told Reuters.

Walmart, CVS and Walgreens said they would appeal the verdict, and Walmart called it a “flawed” decision.

The pharmacy operators said the verdict contradicts the facts and misapplies a public nuisance law to hold them liable under an emerging legal theory that other courts in California and Oklahoma have previously rejected in similar cases against pharmaceutical companies that make the drugs.

“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,” Walmart said in a statement issued after the verdict.

CVS said it strongly disagrees with the decision.

“Pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat actual patients in need,” CVS said in a statement provided to NPR.

Walgreens also decried the verdict, saying there were “significant legal errors” in the 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,” Walgreens said in a statement to NPR.

The Ohio case marks the first major decision in a slew of litigation that seeks to hold the dispensers responsible under public nuisance laws, and came just weeks after two other significant legal victories cleared drugmakers of wrongdoing.

In November, the Oklahoma Supreme Court threw out a $465 million opioid ruling against Johnson & Johnson that was based on a similar public nuisance legal theory.

Shortly before the Oklahoma reversal, a California judge in Orange County State Superior Court threw out a case against four opioid manufacturers — Johnson & Johnson, Teva, AbbVie subsidiary Allergan and Endo Pharmaceuticals — in the pharmaceutical industry’s first major legal victory.

“There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need,” Judge Peter Wilson wrote after the four-month bench trial concluded.

HBS’s Opioid Task Force includes senior partners, experienced associates, legal nurses and expert witnesses who have worked together to defend clients in numerous cases across the Southeastern United States and beyond. Our strategic approach in critically assessing the facts of the case and evaluating risk exposure help us create negotiation and courtroom strategies that ensure a strong defense that protects each client’s rights and best interests. The Task Force also counsels clients on establishing best practices and oversight for prescription policies at practices, hospitals, surgical centers and other health care facilities to ensure compliance with the Controlled Substance Act and minimize risk.