Public nuisance laws in opioid cases give hope to both sides
Cleveland — This week’s jury finding that three major drugstore chains responsible for contributing to the opioid addiction scourge in two Ohio counties may just be the beginning of a drawn-out legal battle that may ultimately not leave communities better off.
The reason is the central argument – that pharmacies created “public inconvenience” by distributing a massive amount of prescription pain relievers in every county.
Thousands of state and local governments have sued drug companies, distributors, and pharmacies over a crisis that has contributed to more than 500,000 overdose deaths in the United States over the past two decades. The lawsuits generally focus on allegations that the companies caused public harassment by interfering with the rights of the public through the way they market, ship and sell medicines — feeding addictions to some patients and providing pills that were later diverted to the black market.
Similar arguments were used in two other cases — in California and Oklahoma — that had gone in favor of the industry in the weeks before the Ohio jury’s decision. Given these decisions, there is no guarantee that Tuesday’s ruling in the Lake and Trumbull County case against CVS, Walgreens and Walmart will halt the appeal or lead to similar decisions elsewhere.
“There have been a variety of different decisions recently that should give us reason to be cautious about what this really means in the grand scheme,” said Kevin Roy, Shatterproof’s chief public policy officer, who is calling for solutions to the nation’s addiction and overdose crisis.
The industry argues that it has done nothing illegal and that public nuisance laws simply do not apply to the prescription and distribution of prescription pain relievers.
“As we have said during this process, we have never manufactured or marketed opioids nor distributed them to the ‘grain mills’ and internet pharmacies that fueled this crisis,” Walgreens spokesperson Fraser Ingerman said in a statement. Public nuisance is misleading and unsustainable.”
General nuisance lawsuits are typically used to address local concerns such as distressed homes or illegal drug or dangerous animal trafficking. Such allegations were used in state lawsuits against tobacco companies in the 1990s, but those led to settlements rather than prosecutions.
Lawyers representing counties and other local governments involved in a broader world of opioid litigation said the companies are complicit in creating local public health emergencies by opening more sites, flooding communities with pills and facilitating the flow of opioids to a secondary market.
In Trumbull County alone, nearly 80 million prescription pain relievers were dispensed between 2012 and 2016 — about 400 per resident. In Lake County, there were about 61 million pills.
Reverend Barbara Holzhauser has witnessed the influx of opioids tearing apart the layers of her community. She’s been getting a lot of calls telling her of another overdose death and she’s presided over many of those funerals.
“In almost every situation, the person, just like my nephew, tried to recover and then fell into it again,” said Holzhauser, whose nephew died of an overdose eight years ago.
An assistant minister at Mentor United Methodist Church said the crisis has been devastating across Lake County, a mix of blue-collar and affluent suburban neighborhoods east of Cleveland. Holzhauser said she’s glad the county is doing something to hold the pharmaceutical industry to account.
“I can’t think of anyone I know who hasn’t been affected by it in some way,” she said.
Lawyers representing local governments in national opioid lawsuits cited influences such as those in Lake County in defending the use of public nuisance laws, asserting that the companies were negligent or negligent. Attorney Mark Lanier said pharmacies should have exercised greater responsibility for dispensing opioids.
“These are highly addictive drugs,” Lanier said. “Through this trial, the jury was able to evaluate the national measures put in place by these drug chains and yell from the rooftops: ‘Not enough.'”
Nevertheless, drugstore chains vowed to keep fighting and see reason for optimism.
An Oklahoma judge ruled in 2019 that the drug company Johnson & Johnson had caused inconvenience and ordered the company to pay the state $465 million. This month, the state Supreme Court rejected the ruling, saying Oklahoma’s Public Nuisance Act does not apply to an opioid maker.
Also this month, a California judge ruled in favor of a group of drug companies being sued under the Public Disturbance Act by county and city governments.
Tuesday’s decision bucked this trend. The Ohio case is also unique in that it was the first of opioid trials in the United States decided by a jury rather than a court, and the first in lawsuits against pharmacies.
Pursuing cases for causes of public nuisance made sense because pharmacies were in a unique position to watch the development of the addiction crisis, Elizabeth Burch, a law professor at the University of Georgia, said.
“These are the people on the front lines,” she said. “They see the same people coming in and they see the same doctors writing prescriptions.”
But she also noted that public nuisance laws and case law vary by state and that factors such as an attorney’s obligation can be enough to swing judgment. This makes it uncertain whether a consensus will be developed around legal theory.
More tests of public nuisance laws loom.
A federal judge in West Virginia heard a case against drug distributors earlier this year but has yet to rule. Trials are underway against distributors in Washington state and manufacturers in New York.
Unlike companies in other sectors of the pharmaceutical industry, no pharmacy entered into a nationwide settlement deal during the crisis. Joe Rice, one of the top attorneys representing local governments in the cases, said he hoped the ruling would prompt pharmacy chains to start reaching those settlements.
If they don’t, it could cost them more. Two Ohio counties, for example, are seeking more than $1 billion in damages in the second phase of the trial, which is expected to take place next April or May.
“We’re going to try a lot of issues and lose some of them. But we’re going to win this war,” Rice said.
Mulvihill reported from Sherry Hill, New Jersey.
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