Ohio jurors fault big pharmacy chains for role in opioid drug crisis

lotsapills-300x200The regular folks who make up juries may give more heed than judges and justices do to the how and why of patients’ push for justice in the civil system, as has been shown in yet another bellwether decision involving major drug store chains and claims they contributed to the nation’s worsening opioid abuse and drug overdose crisis.

CVS, Walgreens, and Walmart all contributed substantially to creating a public nuisance by failing to ask appropriate questions and flooding Lake and Trumbull, two Ohio counties, with countless numbers of prescription painkillers, 12 jurors in a Cleveland court found after a six-week trial and 5½ days of deliberation. As the New York Times reported of the lawyers for the plaintiff counties and their successful argument, the “first time the retail segment of the drug industry has been held accountable in the decades-long epidemic….”

“After hearings in the spring, the trial judge will determine how much each company should pay the counties. The verdict — the first from a jury in an opioid case — was encouraging to plaintiffs in thousands of lawsuits nationwide because they are all relying on the same legal strategy: that pharmaceutical companies contributed to a “public nuisance,” a claim that plaintiffs contend covers the public health crisis created by opioids. The public nuisance argument was rejected twice this month, by judges in California and Oklahoma in state cases against opioid manufacturers. The judges found that according to the specifics of their own states’ public nuisance laws, the companies’ activities were too removed from the overdoses and deaths and that the laws had been applied too expansively.

“In this case … lawyers for the plaintiffs used the legal claim successfully. They argued that for years, the pharmacies had turned a blind eye to countless red flags about suspicious opioid orders, both at local counters where patients obtained the drugs and at corporate headquarters, where oversight requirements were, according to Mark Lanier, the counties’ lead trial lawyer, ‘too little, too late.’”

The federal judiciary has consolidated cases involving opioids damage claims in a court in Cleveland, where a judge has said he hopes to wrangle a global settlement, akin to what was struck with Big Tobacco damage cases years ago. The Cleveland cases include lawsuits filed by states, counties, and other local governments, as well as Indian tribes and individuals. Various Big Pharma parties have sought to free themselves of challenges not only in the Cleveland court but also through piece-by-piece resolution of cases across the country. As the New York Times reported of the drug store chain defendants:

“The deep-pocketed retailers were the last cluster of pharmaceutical corporations to be pursued in the courts. To date, they have faced fewer lawsuits than other pharmaceutical companies. This past summer, Walgreens, Rite Aid, CVS, and Walmart settled with two New York counties, Nassau and Suffolk, for a combined $26 million. In the Ohio case, Rite Aid and Giant Eagle, a regional chain, settled earlier for undisclosed sums. In contrast, some opioid manufacturers and distributors have committed billions of dollars in settlement offers, some nationwide. ‘The judgment today against Walmart, Walgreens and CVS represents the overdue reckoning for their complicity in creating a public nuisance,’ the lawyers for the two counties, along with lawyers for local governments across the country, said in a statement after the verdict … CVS, Walgreens and Walmart said they would appeal the verdict.”

While the Colorado judge and justices of the Oklahoma Supreme Court have rejected the legal strategy attacking defendants for creating a public nuisance — a sustained problem abetted by profit-seeking and ignoring warning signs — jurors apparently were more willing to accept that big corporations did wrong, the New York Times reported. And that they failed to deal with a glaring problem.

The newspaper reported that legal experts are unsure whether the Ohio verdict will hold up on appeal. Defendants, of course, also ran into inarguable reality: Big Pharma’s opioid drugs have killed a half million Americans over a decade, addicted and debilitated vast numbers of patients, and laid waste to communities across the country.

As the New York Times also reported:

“But even as thousands of opioid cases, the first of which were filed in 2014, lumber along, the urgency of getting help to opioid-shattered communities has not slowed. New federal data released last week show overdose deaths from opioids have reached record levels during the pandemic, driven by soaring fatalities from illegal opioids such as heroin and street fentanyl.”

Federal officials have confirmed that 2021 will go in the record books as a calamitous time in the battle against the opioid painkiller abuse and overdose crisis, with more than 100,000 U.S. lives lost this year alone to a long-running public health nightmare.

Lest anyone suffer “compassion fatigue” or fail to see how unacceptable this mess has become, news articles in major media offered a drumbeat of disturbing context: 2021’s toll will be the highest of any single year in the crisis … the opioid crisis worsened significantly, so much so that its deaths increased by 30%, year over year … Overdose deaths in the United States exceeded more than the (also increasing) toll of car crashes and gun fatalities combined …The people who died — 275 every day — would fill the stadium where the University of Alabama plays football. Together, they equal the population of Roanoke, Va.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by dangerous drugs, especially prescribed products like addictive painkillers from Big Pharma.

The opioid crisis — fostered for years by Big Pharma, doctors, nurses, hospitals, insurers, and others in the U.S. health care system — has entered its latest and notably bad stage with easily and cheaply made, exceedingly powerful synthetic painkillers like fentanyl flooding the country. Public health and law enforcement officials have warned that criminals are tainting an array of illicit street products, now including marijuana, with fentanyl, promising a higher high to buyers. They may not realize, though, that dosage of so potent a drug can be tough to control. It can be lethal, especially to the unsuspecting.

The opioid horror has its roots in Big Pharma hype and misinformation about its hugely profitable products. Drug makers flooded the country with pills. These, in turn, opened the door to strong, familiar, and lethal street drugs, notably heroin and meth.

Misguided pundits, out of touch with reality and the gravity of the opioid crisis, may persist in supporting capitalism run amok. They can back companies’ extreme pursuit of profits, no matter the harms they cause — and hammer trial lawyers and the civil justice system. But how will the nation muster the will and way to attack a long, awful problem? We must not waver or back down in our commitment to help those who suffer with chronic pain and those who have been hooked or killed by deadly medications that they were promised would help them.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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